UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


B,  A.  Hawkins,  Jt. 


PLEADING 


IN   THE 


OF  TEXAS 


BY 


JNO.  C.  TOWNES,  LL.  D. 

PROFESSOR  O^  t  AW,  UNIVKB8ITY  OF  TEXAS 


AUSTIN,  TEXAS 

PUBLISHED  BY  THE  AUTHOR 
1901 


T 


Entered  according  to  Act  of  Congress,  in  the 
year  A.  D.  1901,  by 

JNO.  C.  TOWNES, 

In  the  office  of  the  Librarian  of  Congress,  at 
Washington,  D.  C. 


BEN   C.  JONK$   A^E.QO,, 

PRINTERS,  BINDERS  AS.D  .ELEUTKOTYPEHS, 
t      AUSTI1?,   TETASo  (    ^ 


* 

<*•  PREFACE. 


The  Law  of  Texas  is  unique.  It  consists  of  a  combination  of  much 
of  the  best  in  the  Common  Law  and  in  the  Eoman  Law  systems,  supple- 
mented by  many  important  original  provisions.  The  Common  Law  is 
its  base  in  most  matters  regulating  substantive  rights  and  in  so  much 
of  procedure  as  relates  to*  evidence  and  juries,  and  the  Roman  Law  in 
many  of  the,  substantive  rules  pertaining  to  its  land  system  and  to 
marKal  rights,  and  in  the  blending  of  Law  and  Equity  and  in  the  rules 
of  pleading. 

These  conditions  gaye  rise  to  many  and  serious  difficulties;  but  the 

men  who  founded  our  government  and  those  who  have  since  administered 

„  its  affairs  have  proved  themselves  capable  of  dealing  with  these  problems, 

•"3  and  by  their  wisdom  and  courage  have  evolved  from  this  seemingly  in- 

3  congruous  grouping  of  discordant  elements  a  symmetrical  and  harmoni- 

?•  ous  svstem.  which  is  entitled  to  the  admiration  of  all  lovers  of  good 

-*-"1    & 

$  government. 

One  of  the  needs  of  the  bench  and  bar  of  Texas  to-day  is  a  series  of 
.  carefully  prepared  text-books  tracing  this  process  of  development  in  the 
several  branches  of  our  system  and  clearly  and  accurately  presenting  the 
law  as  it  now  is,  in  the  light  thrown  upon  it  from  the  past. 

Among  my  duties  in  the  University  of  Texas  is  teaching  Pleading 
and  Practice.  Feeling  that  the  Common  Law  works  on  these  subjects, 
however  excellent  in  themselves,  are  not  applicable  as  practical  exposi- 
tions of  these  branches  of  our  law,  I  undertook  the  task  of  searching  out 
from  original  sources  the  principles  which  underlie  our  system  of  plead- 
ing and  formulating  the  rules  which  govern  their  practical  application. 
In  so  doing  in  all  instances  in  which  they  seemed  applicable  I  have 
consulted  the  Common  Law  and  Equity  authorities  on  the  one  hand  and 
the  Spanish  and  Mexican  when  accessible  on  the  other;  and  in  all  in- 
stances the  Texas  authorities,  both  legislative  and  judicial,  from  the 

inception  of  our  government.     I  have  endeavored  to  make  the  work  as 

(iii) 


I^ 
f  t 


IV  PREFACE. 

practical  as  possible,  and  to  give  not  only  the  principles  governing  the 
subject,  but  also  the  rules  which  should  control  the  lawyer  in. the  prepara- 
tion of  his  case  in  the  office  and  its  presentation  to  the  court  in  his 
pleading. 

The  book  is  entitled  Texas  Pleading,  and  this  is  the  topic  of  which  it 
treats;  but  to  do  this  thoroughly  and  practically  required  consideration 
of -a  number  of  cognate  subjects,  such  as  the  Judicial  Functions  of  Gov- 
ernment, Jurisdiction,  Different  Kinds  of  Proceedings,  Parties,  Venue, 
Motions,  and  numerous  other  matters,  so  that  the  book  in  one  sense 
is  broader  than  its  title  and  includes  many  matters  of  practice  not 
ordinarily  considered  as  embraced  in  the  term  pleading. 

In  the  appendix  is  given  the  full  text  of  the  rules  of  the  Supreme 
Court  for  the  several  courts  in  Texas  in  force  February  7,  1901.  This 
was  made  practicable  by  the  kindness  of  the  ever-courteous  Clerk  of  our 
Supreme  Court,  Dr.  Charles  S.  Morse,  to  whom  I  here  return  my 
thanks. 

In  its  mechanical  features  I  have  endeavored  to  make  the  book  first 
class,  and  have  spared  neither  time  nor  expense  in  the  effort. 

Hoping  that  the  work  may  prove  helpful,  I  submit  it  to  the  candid 
judgment  of  my  brethren  of  the  bar.  With  respect, 

JNO.  C.  TOWNES. 

State  University,  Austin,  Texas,  March  1,  1901. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

• 

JUDICIAL  FUNCTION  OF  GOVERNMENT. 

PAGE 

Government 1 

Necessity  for 1 

Civil  Liberty 1 

Self  Help 3 

Governmental  Agencies 3 

Division  of  Powers  of  Government .' 4-5 

Different  Departments 4 

Judicial  Function,  Definition  of 5 

Courts   6 

Definition  and  Analysis ' 6-9 

Usual  Officers 10 

Distribution  of  Judicial  Power 11 

Jurisdiction  of  State  Courts  as  Affected  by  Powers  of  Federal 

Government 11-13 

CHAPTER  II. 

JURISDICTION. 

Definitions 14-19 

Issues 19 

Parties  -. - 19 

Hearing  Issues 20 

Adjudging  Issues 20 

Enforcing  Eesult 20 

(v) 


VI  TABLE    OF    CONTENTS. 

PAGE 

Powers  Ordinarily  Conferred  on  Courts 21 

Distribution  of  Judicial  Powers * 21 

Different  Classifications  of  Jurisdiction 23-29 

Jurisdiction  Over  Extraterritorial  Wrongs 29-32 

Time  and  Place  as  Limitations  upon  the  Power  of  Court 33 

CHAPTER  III. 

PROCEEDINGS  IN  PERSONAM,  IN  REM,  AND  QUASI  IN  REM. 
• 

Definition  of  Each 34 

In  Personam 34-36 

InRem 37-39 

Quasi  in  Rem 39-46 

Necessity  for  Notice 46 

Costs 47 

CHAPTER  IV. 

DEVELOPMENT  OF  THE  TEXAS  JUDICIAL  SYSTEM. 

Texas,  the  Meeting  Place  of  the  Civil  and  Common  Law 48-49 

Judicial  System,  What  Is 49 

Texas  as  a  Mexican  State 50-57 

First  State  Judiciary  Law 50 

Judicial  System  Under  the  Permanent  Constitution  of  Coa- 

huila  and  Texas 51-53 

First  Mention  of  a  Jury  in  Texas  Law 52 

First  Texas  Jury  Statute 53 

Chambers  Jury  Law 54-57 

Revolutionary  Period 57-61 

Provisional  Government 57-59 

Judiciary  Article 57-58 

First  Texas  Recognition  of  Common  Law 58 

Government  Ad  Interim 59-61 

Executive  Ordinance  59 

Republic  62-70 

Judicial  System  Under 62-66 


TABLE   OP    CONTENTS.  Vll 

PAGE 

Republic — Pleading  Under 66-70 

State 70-86 

Judicial  System  Under  the  Constitution  of  1845 70-75 

Statutes  on  Pleading  Under  This  Constitution  .  . .' 75-76 

Early  Cases  Construing  These  Statutes 76-79 

Historical  Position  of  Texas  as  to  the  Blending  of  Law  and 

Equity  79 

Judicial  System  Under  the  Constitution  of  1869 80 

Judicial  System  Under  the  Constitution  of  1876 '.  81-82 

Judicial  System  Under  Constitutional  Amendments  of  1891.  .  82-86 

CHAPTER  V. 

ORGANIZATION  OF  DISTRICT  AND  COUNTY  COURTS 
UNDER  THE  PRESENT  CONSTITUTION. 

t 

Officers  Composing  These  Courts  . 87 

'The  Judge 87-90 

Functions  of 87 

District  Judge,  Election  and  Qualifications 87 

County  Judge,  Election  and  Qualifications 87 

Disqualifications  of 87-88 

Special  Judges 89 

The  Jury 90-93 

Functions  of 90 

Regulation  of  Right  of  Trial  by 91 

Qualifications  of  Jurors 90 

Method  of  Securing 92 

Forming  of  Panel  for  the  Week 92-93 

The  Clerk 94 

The  Sheriff 94 

The  Attorneys  at  Law 94 


Vlll  TABLE   OF    CONTENTS. 

CHAPTER  VI. 

CIVIL  JURISDICTION  OF  THE  DISTRICT  AND  COUNTY 

COURTS. 

PAGE 

Constitutional  Provisions  as  to  the  District  Court 96-  97 

Statutory  Provisions  as  to  the  District  Court 97-  98 

Constitutional  Provisions  as  to  the  County  Court 98-   99 

Statutory  Provisions  as  to  the  County  Court 100-101 

Civil  Jurisdiction  of  the  District  Court,  Detailed  Consideration. .  101-144 

Suits  in  Behalf  of  the  State ' 101-103 

Penalties  102 

Forfeitures    102-103 

Escheats  103 

Suits  for  Divorce 103-105 

Slander  and  Defamation 105 

Trial  of  Title  to  Land 105-114 

Land  Denned 106-107' 

Trial  of  Title 107-114 

Decisions  Construing 107-113 

Result  of  the  Decisions 113-114 

Suits  to  Foreclose  Liens  on  Land 114-115 

Trial  of  the  Right  of  Property 115-116 

Result  of  the  Decisions  Construing .' .         116 

Suits,  Complaints,  and  Pleas 116-117 

Without  Regard  to  Any  Distinctions  Between  Law  and  Equity.  117 -120 

Jurisdiction  Fixed  by  the  Amount  in  Controversy 120-128 

District  and  County  Court  Provisions  regarding 120 

What  is  the  Amount  in  Controversy 120-121 

Interest 121-122 

Attorneys'  Fees 122 

Joinder   of    Causes   of   Action   to    Make   Jurisdictional 

Amount 123-125 

Remittitur  of  Part  of  the  Claim  to  Bring  Within  Jurisdic- 
tion           126 

Amount  in  Controversy  in  Suits  to  Foreclose  Liens  on  Per- 
sonal Property 127 

Amount  as  Affecting  Right  to  Plead  in  cross-action 127 


TABLE    OF    CONTENTS.  ix 

PAGE 

Civil  Jurisdiction  of  the  District  Court,  Detailed  Considera- 

ation — Fraudulent  Allegations  as  to  give  Jurisdiction.  ...          128 

Contested  Elections 128 

Under  Former  Constitutions 128 

Under  Present  Constitution 129 

Power  to  Issue  Writs 129-139 

Habeas  Corpus 130 

Mandamus  and  Injunction 130-138 

Jurisdiction  Under. Former  Constitutions 130-131 

Change  in  the  Present  Constitution 131 

Decisions  Construing 131  - 138 

Certiorari  138 

All  Writs  Necessary  to  Enforce  Jurisdiction 139 

Appellate  Jurisdiction  of  District  Court  in  Probate  Matters.  .139-140 
Jurisdiction  of  District  Court  in  Suits  Concerning  Estates. .  .141-143 
Original  Jurisdiction  of  District  Court  in  Probate  Matters .  . .  143 

Control  over  County  Commissioners  Court 143 

General  Grant  of  Power  over  All  Cases  Not  Committed  to 

Some  Other  Court 144 

Civil  Jurisdiction  of  County  Court 144-146 

When  Dependent  on  Amount,  in  Controversy 144-145 

Denials  of  Jurisdiction 145 

Appellate  Jurisdiction  of,  from  Justice's  Court 145 

Jurisdiction  by  Certiorari 146 

Appellate  Jurisdiction  in  Road  Matters 146 

Eminent  Domain 146 

Time  and  Place  as  Affecting  Jurisdiction 146 

CHAPTER  VII. 

JOINDER  AND  MISJOINDER  OF  CAUSES  OF  ACTION. 

Multiplicity  of  Suits  to  Be  Avoided 147-151 

Joinder  of  Actions  for  Breach  of  Contract  and  for  Tort 151 

Joinder  of  Actions  on  Different  Contracts 152-156 

Joinder  of  Actions  for  Tort   -. 156-158 

Misjoinder  of  Causes  of  Action 158 

Consolidation  of  Suits   159 


X  TABLE   OF    CONTENTS. 

CHAPTER  VIII. 

PARTIES  TO  ACTIONS— WHO  MAY  SUE  AND  BE  SUED. 

PAGE 

Representatives  of  Sovereignty  160-170 

The  State  160-161 

Counties,  Cities,  and  Towns 161-162 

Federal  Government  162 

Natural  Persons  Representing  Sovereignty 162-170 

Persons  in  Private  Capacity .  170-180 

Persons  Sui  Juris 170-175 

Right  to  Sue  170 

Exceptions  172-175 

Persons  Non  Sui  Juris 175-176 

Married  Women  175 

Infants 176 

Insane  Persons 176 

Combination  of  Natural  Parties 176-179 

Partnerships  as  Parties 177 

Charitable  and  Social  Organizations 178 

Corporations  178-179 

Foreign  Corporations 178-179 

Capacity  in  Which  Suit  Is  Brought 179-180 

CHAPTER  IX. 

PARTIES  TO  ACTIONS  (CONTINUED)— JOINDER,  NONJOIN- 
DER, AND  MISJOINDER. 

General    Principles 181 

Necessary  and  Proper  Parties 182-184 

Improper  Parties 184 

Different  Classifications  of 184-185 

Joinder  of  Parties  at  Common  Law 186 

Joinder  of  Parties  in  Equity 187 

Texas  Rules   187-203 

Actions  Concerning  Real  Property 188-196 

Actions  Regarding  Personal  Property 196-197 


TABLE   OF    CONTENTS.  XI 

PAGK 

Texas  Rules — Suits  on  Contract 198-200 

Actions  for  Torts 200 

Mandamus    200 

Quo  Warranto 201 

On  Official  Bonds 201-202 

Actions  for  Injuries  Resulting  in  Death 203 

Nonjoinder  of  Necessary  and  of  Proper  Parties 204 

Misjoinder,  Effect  of 205 

New  Parties 206-207 

Intervenors    .  ..208-210 


CHAPTER  X. 

VENUE. 

General    Principles 211-212 

Distinction  Between  Venue  and  Territorial  Jurisdiction 211 

General  Policy  and  Eules  of  Construction 212-214 

When  Fixed  by  Residence  of  Defendant 214 

Detailed  Consideration  of  Exceptions 215-238 

Practice  When  Improperly  Laid 238-241 

Change  of 241-24G 

By  Agreement 241 

On  Application  of  One  Party 242-246 

When  New  County  Is  Formed 246 

Effect  of  Order 246 

CHAPTER  XI. 

GENERAL  PRINCIPLES  OF  PLEADING. 

Fundamental    Conceptions 247 

Definitions 247-250 

Issues,  and  Their  Combination 251-253 

Statutes  and  Rules  of  Court  on  Pleading.  ., 253-255 

Petition   and  Answer 255 

Different  Instruments  of  Pleading  and  Their  Order 255-256 

Matters  of  Substance  and  of  Form.  .  .  .256-257 


Xll  TABLE   OF    CONTENTS. 

PAGE 

Pleadings  Presenting  Issues 257-258 

Facts,  What  Are 259-266 

Fullness   266-278 

Matters  Which  Need  Not  Be  Plead 270-273 

Omissions,  When  and  How  Cured.  ......* 273-277 

Allegations  of  Damage 277 

Prayer  for  Eelief 278 

Certainty    *      .  .  278-292 

Exhibits    292 

Directness ^  292-293 

Consistency 293 

•Facts  Must  Be  Plead  in  Accordance  with  the  Evidence 293-295 

Duplicity 295-297 

Multifariousness    297-298 

Verification  of  Pleadings 298-300 

Conciseness  - 300-301 

Facts  Must  Be  Presented  Logically 301-302 

Failure  to  Comply  with  Rules 302-304 

Intervenors   .  305 


CHAPTER  XII. 

DIFFERENT  INSTRUMENTS  OF  PLEADING  AND  THEIR  RE- 
LATION TO  EACH  OTHER. 

Petition  and  Answer,  Generic  Terms 306 

Designation  of  the  Several  Instruments  and  Order  of  Filing.  .  .306-307 

Diagram    308 

Distinctions  Between  Original  Pleadings,  Amendments  and 

Supplemental  Pleadings 309 

Relation  of  the  Several  Instruments  to  Each  Other 309 

Amendments,   Full    Discussion • 309-321 

Amendments  Setting  Up  New  Causes  of  Action 311-317 

Amendment  of  Verified  Pleadings .' .  .  .  317-321 

Supplemental    Pleadings 321-322 


TABLE   OF    CONTENTS.  Xlli 

CHAPTER  XIII. 

PLAINTIFFS  ORIGINAL  PETITION. 

PAGE 

Formal  Parts "323 

Marginal    Venue. 323 

Term  of  Court 323 

Address   323 

Commencement 324 

Cause  ef  Action 324-347 

Statutes  Regarding 324-325 

Rules  of  Court 325 

Counts  and  Paragraphs 325-327 

Elements  of  Cause  of  Action 327 

Must  Show  Plaintiff's  Right 327 

Legal  Rights  and  Duties 328-333 

Allegations  of  Plaintiff's  Right  in  Suits  on  Tort 333 

Allegations  of  Plaintiff's  Right  in  Suits  on  Contract 333-341 

Essentials  of  Contract 333 

Allegations  of  Consideration 334-340 

Description  of  Writing  Sued  On 341 

Legal  Effect  of  Writing 341 

Must  Show  Wrong  by  Defendant 343-347 

What  Constitutes  a  Legal  Wrong 342-343 

Status  of  Wrongdoer  as  Affecting  Liability 343 

Defendant's  Connection  with  the  Wrong 344-345 

Wrong  Must  Be  Shown  to  Be  the  Proximate   Cause  of 

Injury    346 

Must  Show  Legal  Injury 346 

Prayer  for  Relief 347-348 

CHAPTER  XIV. 

DEFENDANT'S  ORIGINAL  ANSWER. 

General  Nature  of  Defenses 349 

Statutes  Regarding  Answer 350-351 

Rules  of  Court..  ..352-353 


XIV  TABLE    OF    CONTENTS. 

PAGE 

Number  of  Defenses  and  Order  of  Presenting 353 

Distinction  Between  Dilatory  Pleas  and  Pleas  in  Bar 354 

Dilatory  Pleas 354-363 

Due  Order  In 355-358 

Certainty  in ' 358 

Verification  of 359 

Enumeration  of  Some  Matters  of  Abatement 359 

Practice  When  Dilatory  Plea  Is  Filed 360-363 

Pleas  in  Bar 363 

Due  Order  in 363 

D'emurrers    363-365 

General  Denials 365-367 

Special   Denials 367-368 

Pleas  in  Confession  and  Avoidance 368-370 

Nature  of '. ' .         368 

When    Necessary 369 

Kules  Governing  Preparation  of 369 

Most  Frequent  Examples  of 369 

Defenses   of  Limitation 369-370 

Pleas  of  Estoppel 370 

Cross-Actions    371-382 

Generally    371 

Texas    Statutes 372-373 

Different  Groups  of  Cases  Covered  by  the   Statutes — Full 

Discussion 374-380 

Cross-Actions  and  Eeconvention  in  Cases  Not  Within  the 

Statutes    380-381 

Eules  of  Pleading  in  Cross- Action 381 

Eecapitulation  as  to  Cross- Action 381-382 

CHAPTER  XV. 

PLEADING  IN  SPECIAL  CASES. 

Libel  '. 383-387 

Pleading  by  Plaintiff 383-385 

Pleadings  by  Defendant 385-387 

Slander    .  ..387-388 


TABLE    OF    CONTENTS.  XV 

PAGE 

Mandamus    388-393 

Quo   Warranto 394-402 

Trial  of  the  Eight  of  Property 402-404 

CHAPTER  XVI. 

TEESPASS  TO  TEY  TITLE. 

Ejectment  405-406 

Statutes  Eegarding  Trespass  to  Try  Title 406-412 

Nature  and  Scope  of  Action 412 

Pleadings  by  the  Plaintiff 413-420 

General  Eules  and  Decisions  Eegarding 413-415 

Statutory  Eequirements 415-420 

Joinder  of  Other  Causes  of  Action 420 

Pleadings  by  the  Defendant 420-428 

Plea  of  Not  Guilty , 420-426 

General  Effect  of 420-422 

Admissions  Involved  in 422-424 

Defenses  Available  Under 425-426 

Limitation,  Plea  of 426-428 

Improvements  in  Good  Faith 428-433 

Supplemental  Pleadings 433-434 

CHAPTER  XVII. 

MOTIONS. 

Motions  and  Pleadings  Contrasted 435 

Definition  and  Discussion 435-437 

Form   of 437-438 

Different  Kinds 438-440 

Notice  of 440-442 

Time  and  Manner  of  Hearing 442-444 


TABLE    OF    CONTENTS. 


CHAPTER  XVIII. 

ABATEMENT,    DISCONTINUANCES,    AND    DISMISSAL    FOR 
CAUSES  ARISING  AFTER  SUIT  BROUGHT. 

PAGE 

Definition  of  Terms 445 

Abatement  by  Death  of  Party 445-450 

Common  Law  Rules 445-446 

Act  of  1895 447-448 

Other    Statutes 448-450 

Abatement  on  Dissolution  of  Corporation 450-453 

Pendency  of  Another  Suit  as  Ground  of 453 

Insanity  as  Ground  for 453-454 

Discontinuance  as  Ground  for.  .  .  .454—456 


APPENDIX. 

RULES  FOR  THE  COURTS  OF  TEXAS. 

Supreme  Court. 
Court  of  Criminal  Appeals. 
Courts  of  Civil  Appeals. 
District  and  County  Courts. 


TEXAS  PLEADING, 


CHAPTER  I. 

THE  JUDICIAL  FUNCTION  OF  GOVEKNMENT. 

The  word  government  signifies,  first,  the  exercise  of  control;  second, 
the  control  exercised;  and  third,  the  means  through  which  this  is  ac- 
complished. The  word  is  used  in  law  in  each  of  these  senses.  Thus,  we 
say  that  in  the  State  of  Texas  the  people  govern  themselves;  that  this 
government  is  beneficial  to  them,  and  that  the  form  of  government  is  re- 
publican. By  this  we  mean  that  the  people  as  a  whole  exercise  control 
over  themselves  collectively  and  over  each  other  individually,  that  the 
control  thus  exercised  is  salutary,  and  that  the  system  of  agencies  through 
which  the  control  is  exercised  belongs  to  the  class  known  as  republican. 

The  one  idea  common  to  all  these  uses  of  the  term  is  regulation  by  a 
dominant  power,  so  that  every  conception  of  government  carries  with  it 
the  idea  of  control  over  those  subject  thereto  and  limitation  upon  their 
conduct.  Some  degree  of  limitation  is  unavoidable  in  any  social  con- 
dition. 

If  one  man  were  alone  in  the  world  his  rights  and  duties  could  not  ex- 
tend beyond  the  strictly  personal  and  religious.  He  would  sustain  no 
social  relations ;  could  have  no  social  rights ;  and  could  owe  no  social  du- 
ties ;  but  so  soon  as  a  second  man  should  come  upon  the  stage  of  action, 
social  relations  would  spring  up  between  the  two.  If  the  first  should 
by  any  means  continue  his  former  status,  unaffected  by  the  advent  of 
the  second,  this  would  necessarily  involve  the  abject  subjection  of  the 
second  to  him ;  for  by  just  so  much  as  the  right  of  the  second  was  recog- 
nized, by  that  much  would  the  free  action  of  the  first  be  limited.  This 
necessarily  results  from  the  correlative  and  inseparable  nature  of  right 
and  duty.  If  no  religious  or  moral  or  legal  standards  of  right  and 
duty  were  recognized  between  the  parties  fixing  their  respective 
obligations,  their  relations  would  be  simply  a  question  of  force  and 
cunning,  the  victor  destroying  or  absolutely  controlling  the  vanquished. 
This  would  be  unlimited  license  to  the  stronger  and  unlimited  subjection 
of  the  weaker.  Liberty  to  both  would  be  equality  bet  ween  the  two;  that  is, 
1 — Pleading 


Z  THE   JUDICIAL   FUNCTION   OF   GOVERNMENT. 

the  recognition  by  both  of  the  just  claims  of  each  to  an  equal  opportunity 
for  life  and  development,  and  the  exercise  by  both  over  both,  or  both  over 
each  and  each  over  the  other,  of  only  so  much  restraint  as  would  most 
effectively  prevent  either  from  encroaching  upon  the  equal  claims  and 
privileges  of  the  other.  The  same  thing  is  true  if  we  enlarge  the  num- 
ber of  individuals  in  the  community.  Though  there  may  be  increased 
difficulty  in  applying  the  principles,  the  principles  themselves  which  form 
the  basis  of  civil  liberty  are  ever  the  same.  Regulation,  producing  the  re- 
sults above  indicated,  self-imposed  by  each  member  of  society,  would 
constitute  the  ideal  social  state.  Unfortunately,  however,  men  are  not 
so  constituted  as  to  render  such  self-regulation  possible;  and  therefore, 
in  order  to  approach  as  nearly  as  may  be  to  this  condition  of  liberty,  in 
each  community  restraints  must  be  imposed  upon  every  individual  by 
some  power  capable  of  enforcing  itself.  The  imposition  and  mainte- 
nance of  these  restraints  by  a  power  outside  of  each  individual  subject 
thereto,  adjusting  the  relations  between  and  among  these  individuals,  and 
prescribing  rules  for  each  to  observe  in  his  conduct  toward  the  others,  is 
government  in  the  primary  sense  of  the  word. 

The  power  imposing  such  restraints  politically  over  any  community  is 
the  sovereign  as  regards  that  people.  The  aggregate  or  collective  body  of 
persons  subject  to  the  same  governmental  power  constitutes  a  State  or 
people.  The  system  of  agencies  through  which  this  power  acts  in  exercis- 
ing its  control  is  the  municipal  or  civil  government  of  that  State  or  peo- 
ple, and  the  announced  and  enforced  will  of  the  sovereign  as  to  the  nature 
and  extent  of  these  restraints  and  the  means  and  manner  of  enforcing 
them  is  the  law  of  that  State  or  people. 

Sovereignty,  therefore,  may  be  defined  as  the  supreme  political  power 
in  a  State;  a  State,  as  the  collective  body  of  individuals  subject  to  the 
same  sovereign  power;  civil  or  municipal  government,  as  the  system 
of  agencies  through  which  sovereignty  manifests  itself;  and  law,  as  the 
will  of  the  sovereign  announced  and  enforced  in  and  through  these 
agencies. 

There  are  many  theories  as  to  the  origin  of  municipal  government,  and 
doubtless  there  is  some  truth  in  each;  but  these  and  their  respective 
claims  to  recognition  are  matters  apart  from  our  present  purpose. 

There  are  also  many  opinions  as  to  the  proper  seat  of  sovereignty — 
whether  it  pertains  to  some  one  favored  individual,  or  to  some  special 
class  or  classes,  or  inheres  in  the  whole  people.  Differences  in  opinion 
as  to  the  proper  agencies  through  which  it  should  manifest  itself  are 
correspondingly  great.  But,  whatever  views  may  be  entertained  on  these 
subjects,  two  facts  remain  indisputable :  first,  that  any  system  of  munici- 
pal government  involves  to  some  extent  loss  of  individual  freedom  of 
action ;  and,  second,  that  civil  liberty  is  possible  only  through  restraint 
exercised  without  discrimination  over  all  members  of  the  community  by 
a  power  regardful  alike  of  the  claims  and  interests  of  each. 


THE   JUDICIAL    FUNCTION    OF    GOVERNMENT.  6 

Common  law  ideas  and  doctrines  as  to  governmental  institutions,  like 
all  else  of  value  in  that  system  of  jurisprudence,  are  the  result  of  gradual 
processes  of  growth.  The  power  of  truth  and  excellence  of  justice,  work- 
ing patiently  through  the  long  ages  of  the  past,  have  slowly  but  surely 
compelled  recognition,  and  have  so  incorporated  themselves  into  the  very 
suhstance  of  the  common  law  that  practical  equality  in  right  and  op- 
portunity is  now  its  dominant  principle. 

At  various  stages  of  this  political  development  there  have  been  great 
differences  in  the  nature  and  extent  of  the  restriction  placed  upon  the  in- 
dividual. Some  of  the  most  noticeable  of  these  differences  are  found  in 
limitations  imposed  from  time  to  time  upon  the  right  of  self-help,  that 
is,  the  right  of  the  individual  to  prevent  wrongs  when  threatened,  or  to 
redress  them  when  they  have  already  been  sustained.  In  the  early  stages, 
the  latitude  allowed  the  individual  in  these  respects  was  large;  later  it 
was  taken  almost  entirely  away,  and  in  nearly  every  instance  of  wrong, 
whether  apprehended  or  accomplished,  the  person  affected  was  com- 
pelled, under  severe  penalties,  to  resort  for  redress  to  governmental 
agencies.  Later  a  more  conservative  course  was  adopted  and  the  right  of 
self-help  was  recognized  at  common  law  in  five  kinds  of  cases ;  first,  cer- 
tain cases  of  defenses  of  one's  self  and  of  others  from  unlawful  violence ; 
second,  in  recaption  of  persons  or  personal  property  unlawfully  seized  or 
withheld ;  third,  in  re-entry  upon,  real  estate  unlawfully  seized ;  fourth,  in 
abatement 'of  nuisances;  and  fifth,  in  cases  of  distress. 

Our  law  permits  to  the  individual  the  right  to  protect  himself  or  others 
against  threatened  injury  about  to  be  inflicted  by  unlawful  violence,  and 
in  so  doing  he  may  use  such  degree  of  force  as  is,  or  reasonably  appears  to 
be,  necessary.1  He  may  also  repossess  himself  of  real  or  personal  property 
belonging  to  him  and  unlawfully  withheld,  provided  this  can  be  done  with- 
out violence  or  breach  of  the  peace.  He  may  abate  nuisances,  subject  to 
the  same  limitations.  It  must  be  observed  that  in  these  matters  the  right 
of  self-help  is  confined  to  wrongs  actually  transpiring  or  immediately  im- 
minent ;  it  does  not  extend  to  redress  of  past  injuries,  nor  to  the  preven- 
tion of  wrongs  still  so  far  in  the  future  that  resort  might  be  had  success- 
fully to  governmental  agencies.  The  proceeding  in  distress  has  been 
superseded.  Except  in  the  above  instances,  our  law  denies  to  the  in- 
dividual the  right  of  self-help. 

Since  the  government  imposes  these  limitations,  it  is  justly  bound  to 
do  for  the  individual  that  which  it  denies  him  the  privilege  of  doing  for 
himself;  and  hence  it  results  that  affording  protection  against  present  or 
prospective  injury  and  giving  redress  for  past  wrongs  are  the  paramount, 
to  if  not  the  only,  true  functions  of  government. 

Sovereignty  rightfully  exists  in  the  people  governed.  It  is  impossible 
for  such  a  sovereign  to  act  directly.  Agencies  of  some  sort  must  be  pro- 

1  Penal  Code,  title  15,  chap.  1,  and  chap.  11,  subdiv.  4. 


4  THE   JUDICIAL    FUNCTION    OF   GOVERNMENT. 

vided,  and  the  sum  or  aggregate  of  these  agencies  constitute  the  organiza- 
tion of  the  State,  which,  as  before  stated,  is  called  the  government.  To 
accomplish  this  organization  the  people  ordain  constitutions,  declaring 
their  will  as  to  the  form  of  government  to  be  effected,  creating  agencies  to 
carry  out  and  administer  their  sovereign  will,  defining  the  powers  given 
to  these  agencies  and  the  manner  of  their  exercise.  These  written  constitu- 
tions, being  acts  of  the  people  themselves,  are  the  supreme  law.  They 
constitute  at  once  the  sources  of,  and  the  limitations  upon,  the  powers  of 
the  several  representatives  of  sovereignty  called  into  being  therein. 


DIVISION  OF  POWERS. 

The  powers  inherent  in  sovereignty  and  exercised  by  it  through  its 
governmental  agents  are  of  three  general  kinds :  first,  the  power  to  make 
law;  second,  the  power  to  construe  the  law  and  apply  it  to  particular 
cases;  and  third,  the  power  to  enforce  the  application  so  made.  These 
powers  are  respectively  designated  Legislative,  Judicial,  and  Executive. 

These  natural  divisions  have  long  been  recognized.  There  is  no  formal 
declaration  of  them  in  the  Federal  Constitution;  but  the  distribution 
of  power  and  duty  among  the  departments  and  officers  of  the  government 
is  an  actual  and  very  practical  acknowledgment  of  them.  In  the  Con- 
stitution of  the  Republic  of  Texas,  adopted  in  1836,  there  is  an  express 
enunciation  of  these  powers,  and  a  sharp  line  of  separation  is  drawn  be- 
tween them  in  these  words :  "The  powers  of  government  shall  be  divided 
into  three  distinct  departments,  namely,  the  legislative,  the  judicial,  and 
the  executive,  which  shall  be  forever  separate  and  distinct." 

The  first  Constitution  of  the  State  of  Texas,  adopted  in  1845,  under 
which  the  State  entered  the  Union,  expresses  the  same  idea  in  amplified 
form,  as  follows  :2  "Powers  of  the  government  of  the  State  of  Texas 
shall  be  divided  into  three  distinct  departments,  each  of  which  shall  be 
confided  to  a  separate  body  of  magistrates,  to  wit :  those  which  are  legisla- 
tive to  one,  those  which  are  executive  to  another,  and  those  which  are 
judicial  to  another ;  and  no  person  or  collection  of  persons  being  of  one 
of  these  departments  shall  exercise  any  power  properly  attached  to  either 
of  the  others,  except  in  the  instances  herein  expressly  provided."  This 
provision,  with  the  change  of  two  words  only,  which  in  nowise  affect 
its  meaning,  has  been  retained  in  the  organic  law  of  this  State  through 
all  its  modifications,  and  is  a  part  of  the  present  Constitution.  This 
careful  separation  of  each  department  of  government  from  every  other, 
both  in  duty  and  authority,  is  one  of  the  chief  guarantees  of  the  safety 
of  our  institutions.  Each  department  is  supreme  within  its  sphere,  and 

2  Art.  2,  sec.  1. 


JUDICIAL    FUNCTION.  5 

each  is  absolutely  powerless  beyond  its  limits.  Efforts  by  an  officer  in 
one  department  to  exercise  authority  belonging  to  any  other  would  be 
mere  usurpation  and  bind  no  one.  Each  department,  looking  out  for  its 
own  prerogatives,  is  quick  to  discover  and  prevent  any  attempted  invasion 
by  another,  and  this  constant  vigilance  by  each  is  a  check  upon  the  others 
and  inures  to  the  benefit  of  the  whole  people. 

It  may  be  said  with  fair  accuracy,  though  not  with  exactness,  that 
the  power  and  duty  of  prescribing  rules  which  are  to  control  future  con- 
duct pertain  to  the  legislative  department;  the  power  and  duty  of  in- 
vestigating past  conduct  and  determining  its  conformity  or  noncon- 
formity to  these  rules  as  they  existed  at  the  time  that  the  transaction 
took  place  and  of  declaring  and  applying  the  sanctions  of  the  law 
thereto  pertain  to  the  judicial  department;  and  the  power  and  duty  of 
enforcing  and  carrying  into  effect  the  lawful  actions  of  the  other  depart- 
ments pertain  to  the  executive. 


JUDICIAL  FUNCTION. 

Municipal  law  has  two  great  divisions, — criminal  and  civil;  and  each 
of  these  is  subdivided  into  substantive  and  remedial  or  adjective,  and  the 
civil  division  is  again  subdivided  into  two  branches,  contract  and  noncon- 
tract.  In  both  criminal  and  civil  cases  it  is  the  sanction  of  the  law  which 
vitalizes  and  makes  effective  legal  rights — in  criminal  law,  of  the  public ; 
and  in  civil  law,  of  the  individual.  In  other  words,  in  criminal  law  and 
in  civil,  both  contract  and  noncontract,  legal  right  depends  upon  legal 
sanction, — that  is,  upon  legal  recognition  of  the  right  and  enforcement 
of  penalties  for  its  violation.  Crime  does  not  consist  in  doing  an  act 
harmful  to  the  public,  but  one  forbidden  by  law,  to  the  doing  of  which 
a  legal  penalty  is  attached.  A  contract  is  not  an  agreement  simply,  but 
is  an  agreement  enforcible  by  law.  A  tort  is  not  merely  a  wrong,  but 
a  wrong  which  may  be  redressed  by  law — the  violation  of  a  right  or  the 
breach  of  a  duty  for  which  a  legal  civil  remedy  is  provided.  It  is  the 
sanction  of  the  law  that  gives  binding  force  to  both  contract  and  non- 
contract  duty.  To  hear  and  determine  alleged  violation  of  such  legal 
rights  and  to  apply,  announce,  and  enforce  the  sanctions  of  the  law 
against  parties  found  to  have  been  guilty  of  legal  wrong  is  the  judicial 
function  of  the  government.  The  agencies  created  by  the  sovereign 
through  which  to  exercise  this  function  are  termed  courts. 


COURTS. 

A  court  is  an  agency  of  the  sovereign  created  by  it,  or  under  its  au- 
thority, consisting  of  one  or  more  officers,  for  the  purpose  of  hearing 


6  THE   JUDICIAL   FUNCTION   OF   GOVERNMENT. 

and  determining  issues  of  law  and  fact  regarding  legal  rights  and  alleged 
violations  thereof,  and  applying  the  sanctions  of  the  law,  exercising  its 
powers  in  due  course  of  law  at  times  and  places  previously  determined 
by  lawful  authority. 

Many  of  the  old  definitions  of  a  court  seem  to  be  crude  and  misleading. 
They  are  not  true,  in  fact,  and  do  not  tend  to  give  true  conceptions  of 
a  court  or  of  the  purposes  for  which  it  is  created  under  our  form  of  govern- 
ment. 

Analysis  of  Definition. 

(1)  "A  court  is  an  agency  of  the  sovereign."     As  such  agency  it  is 
subject  to  all  of  those  principles  and  limitations  which  are  inseparable 
from  a  representative  position.     It  is  not  created  to  subserve  its  own 
purposes,  pronounce  its  own  judgment,  nor  enforce  its  own  will;  but 
must  in  all  things  subserve  the  purposes,  pronounce  the  judgment,  and 
enforce  the  will  of  its  principal,  the  sovereign  whom  it  represents.     It 
can  not  lawfully  go  beyond  the  authority  which  has  been  delegated  to 
it,  but,  like  other  agents,  it  stands  for  its  principal  only  so  far  as,  and 
in  such  matters  as,  the  principal  has  empowered  it  to  act. 

(2)  "Created  by  the  sovereign  or  under  its  authority."     As  the  court 
is  the  representative  of  the  sovereign,  its  power  must  be  derived  from  it. 
In  States  where  the  Constitution  creates  certain  courts  and  is  silent  as 
to  the  power  of  the  Legislature  to  create  others,  many  nice  questions 
have  arisen  as  to  whether  such  power  exists.  •  This  was  formerly  a  very 
important  and  practical  question  here,  but  under  our  present  Constitu- 
tion there  would  seem  to  be  no  reason  for  further  difficulty  on  this  sub- 
ject, since  that  instrument  creates  certain  courts  and  expressly  authorizes 
the  creation  of  such  others  as  may  be  provided  by  law.     It  seems  clear 
that,  while  the  Legislature  can  not  destroy  or  dispense  with  any  of  the 
courts  created  by  the  Constitution,  it  may  from  time  to  time  provide 
such  others  as  in  its  judgment  public  interests  may  demand3. 

(3)  "Consisting  of  one  or  more  officers."     Care  must  be  taken  to 
distinguish  between  the  court,  which  is  a  legal  entity,  and  the  persons 
through  whom  the  court  acts.     The  court  is  not  the  judge,  nor  any  num- 
ber of  judges  considered  individually.     It  is  not  the  judge,  the  clerk, 
the  sheriff,  the  lawyers,  and  the  jury,  considered  separately  and  indi- 
vidually, although  all  these  are  respectively  members  and  officers  thereof. 
It  is  a  distinct  legal  entity  or  being,  representing  and  acting  for  the 
sovereign,  of  which  the  above  named  officers,  or  such  of  them  as  may  be 
specified  by  law  in  any  given  case,  when  convened  at  the  time  and  place 

3  Jurisdiction  of  Courts,  infra;  Leach  v.  State,  39  S.  W.,  471;  Ex  Parte  Knox, 
39  S.  W.,  570;  Harris  County  v.  Stewart,  91  Texas,  133,  41  S.  W.,  650;  May  v. 
Finley,  91  Texas,  352,  43  S.  W.,  258'. 


COURTS.  7 

and  for  the  purpose  specified  by  law,  are  the  visible  exponents  and  active 
representatives.  While  it  is  always  essential  to  the  actual  discharge  of 
the  functions  of  a  court  that  there  shall  be  present  some  official  person, 
yet  such  a  person  is  not  properly  the  court.  He  is  the  active,  living  agent, 
through  whom  this  invisible  agency  of  sovereignty  manifests  itself  and 
exercises  its  power,  but  he  is  not  that  agency. 

This  distinction  is  recognized  by  the  Constitution  when  it  declares  that 
the  judicial  power  of  this  State  shall  be  vested  in  one  supreme  court,  in 
courts  of  civil  appeals,  courts  of  criminal  appeals,  district  courts,  county 
courts,  commissioners  courts,  justices'  courts,  and  such  other  courts  as 
may  be  prescribed  by  law.  This  power  is  not  vested  in  the  judge  or 
judges,  but  in  the  courts. 

The  constitution  and  law  are  careful  to  preserve  a  well  defined  line 
of  separation  between  the  respective  powers  and  duties  of  the  courts  and 
the  judges.  This  may  be  illustrated  by  the  authority  granted  to  issue 
writs  of  injunction.  The  power  to  hear  and  finally  determine  cases  in 
which  injunction  is  the  remedy  is  vested  exclusively  in  the  courts,  though 
the  judge  has  authority  to  grant  temporary  writs  of  injunction  either 
in  term  time  or  in  vacation;  such  temporary  writ  may  also  be  dissolved 
by  the  judge  either  in  term  time  or  in  vacation.  In  so  doing  he,  as 
judge,  sets  aside  that  which  he  did  as  judge  in  granting  the  writ.  But 
a  judge  merely  as  such  can  not  grant  a  final  writ  of  injunction;  nor 
can  he  dissolve  such  a  writ.  Neither  can  he,  when,  as  judge,  he  declines 
to  grant  a  writ,  or  dissolves  one  theretofore  granted,  dismiss  the  case 
and  settle  the  controversy.  This  can  be  done  only  by  the  court.  If  the 
judge  should  undertake  by  an  order  entered  in  vacation  to  dismiss  the 
case  upon  the  dissolution  of  the  writ,  such  action  by  him  would  be  null. 
In  the  case  of  Price  v.  Bland4  this  point  is  expressly  decided.  The 
object  of  the  proceeding  was  to  enjoin  the  collection  of  taxes.  A  tempo- 
rary writ  of  injunction  was  granted  by  the  judge.  In  vacation  a  motion 
to  dissolve  the  injunction  was  made  and  was  granted,  and  as  the  motion 
to  dissolve  the  writ  practically  settled  the  controversy,  the  judge  at- 
tempted to  dismiss  the  case  and  made  an  order  to  that  effect,  and  had  it 
entered  in  the  form  of  a  final  judgment.  Appeal  was  taken  to  the 
Supreme  Court  and  the  appeal  was  dismissed  on  the  ground  that  the 
dismissal  of  the  case  by  the  district  judge  was  without  effect,  and  as  no 
final  judgment  had  been  rendered  in  the  district  court,  the  case  was 
still  pending  there.  In  Galloway  v.  Crews,  decided  by  the  Court  of  Civil 
Appeals  at  Austin  in  September,  1895,  no  report  of  which  has  been 
published,  the  same  point  was  even  more  forcibly  sustained.  A  local 
option  election  had  been  ordered.  Under  the  statute  it  was  necessary  to 
publish  the  order  for  four  consecutive  weeks  in  a  local  newspaper.  Three 
such  publications  had  been  made.  A  writ  of  injunction  was  sued  out  to 

4  44  Texas,  145. 


8  THE    JUDICIAL   FUNCTION   OF   GOVERNMENT. 

prevent  the  fourth  publication.  A  temporary  writ  was  granted  by  the 
district  judge  in  another  district  and  the  publication  was  stayed.  The 
defendants  made  a  motion  before  the  district  judge  of  the  district  in 
which  the  proceeding  was  pending  to  dissolve  this  temporary  writ.  This 
motion  was  heard  in  an  adjoining  county  during  the  vacation  of  the 
court.  The  judge  dissolved  the  temporary  writ.  The  plaintiff  insisted 
that  this  was  a  final  disposition  of  the  case  and  gave  notice  of  appeal 
and  filed  a  supersedeas  bond, — the  effect  of  such  a  bond  in  cases  of  final 
judgment  being  to  prevent  the  judgment  of  the  lower  court  from  having 
any  effect  during  the  pendency  of  the  appeal.  The  defendants  regarded 
the  writ  as  dissolved  and  proceeded  to  make  the  fourth  publication.  The 
plaintiff  at  once  took  out  and  filed  a  transcript  of  the  case  in  the  Court 
of  Civil  Appeals,  and  there  made  a  motion  against  defendants  for  con- 
tempt by  violating  the  writ  of  injunction.  The  facts  were  not  disputed. 
The  only  question  before  the  court  was, — did  the  facts  that  the  order 
entered  in  vacation  dissolving  the  temporary  writ  practically  settled  the 
whole  controversy,  and  that  the  fourth  publication,  which  was  thereby 
permitted  would  be  made,  before  the  next  term  of  the  court,  make  such 
action  a  final  judgment?  The  court  held  that  they  did  not, — as  the 
judge  was  without  power  to  finally  dispose  of  the  case  during  vacation, 
and  that  this  rule  could  not  be  affected  by  the  peculiar  conditions  which 
made  such  action  practically  decisive  of  the  rights  of  the  parties.  These 
illustrations  show  the  difference  between  the  authority  of  the  court  and 
of  the  judge.5 

(4)  "For  the  purpose  of  hearing  and  determining  issues  of  law  and 
fact  regarding  legal  rights  and  alleged  violations  thereof,  and  applying 
the  sanctions  of  the  law."  These  words  declare  the  purpose  for  which 
this  agency  is  created.  It  is  to  hear  and  determine ;  that  is,  to  investigate 
fully,  thoroughly,  and  impartially,  and  to  settle  authoritatively  all  such 
issues  as  are  lawfully  submitted  to  it.  These  issues  must  be  real  and 
arise  in  real  controversies.  Courts  do  not  sit  to  try  abstract  questions, 
nor  social,  nor  political,  nor  religious  questions,  nor  questions  of  any  class 
except  of  law  and  fact  regarding  alleged  legal  rights  and  violations  there- 
of. These  legal  rights  and  violations  may  be  either  public  or  private. 
The  judicial  power  extends  to  both.  The  authority  to  vindicate  the 
rights  of  the  public  constitutes  the  criminal  jurisdiction  of  the  courts, 
and  authority  to  vindicate  private  rights  their  civil  jurisdiction!.  This 
power  of  the  courts  goes  further  than  the  simple  ascertainment  of  facts 
and  the  expression  of  an  opinion  thereon;  it  includes  the  capacity  for 
authoritative  settlement  of  issues  and  actual  enforcement  of  the  deter- 
mination arrived  at.  By  this  instrumentality  the  sovereign  ascertains 
the  real  facts  in  any  given  case,  and  applies  the  law  thereto  and  enforces 
its  will  as  to  that  particular  matter.  The  strong  arm  of  the  sovereign 

5  See  also  Hines  v.  Morse,  92  Texas,  194,  47  S.  W.,  516. 


COURTS.  9 

is  extended  by  the  court  through  the  officers  under  its  command,  to  the 
persons  or  property  of  those  guilty  of  legal  wrong  and  makes  them  suffer 
the  penalties  provided,  if  the  wrong  be  of  a  public  nature,  in  the  pun- 
ishment of  the  crime,  or  if  the  wrong  be  private,  in  just  compensation 
to  the  injured  individual. 

(5.)  "Exercising  its  powers  in  due  course  of  law."  The  expression 
"due  course  of  law"  the  courts  have  declined  to  define.  As  used  here,  it 
is  intended  to  convey  the  idea  that  every  court  must  act  in  subordination 
to  and  in  compliance  with  the  will  of  the  sovereign,  as  expressed  in  the 
Constitution  and  statutes  of  the  State,  and  in  those  general,  fundamental 
principles  of  law  which  are  recognized  as  of  universal  obligation;  that 
there  must  be  lawful  authority  for  the  court's  proceedings,  and  that  in  all 
its  actions  it  must  be  governed  by  the  law. 

(6)  "Exercising  its  power  at  such  time  and  places  as  may  be  previ- 
ously determined  by  lawful  authority."  The  judicial  power  must  be 
exercised  at  the  proper  time  and  place.  These  must  have  been  anteced- 
ently determined  by  lawful  authority.  "It  is  a  fundamental  principle 
that  common  law  courts  can  exercise  judicial  functions  only  at  such  times 
and  places  as  may  be  fixed  by  law,  and  that  judges  can  enter  no  orders 
in  vacation  except  such  as  are  expressly  authorized  by  law."6 

It  is  not,  however,  necessary  that  the  Constitution  or  statutes  should  in 
every  instance  name  the  exact  time  and  place  when  and  where  the  court 
must  be  held.  This  is  ordinarily  done,  but  it  is  sufficient  if  the  law 
clearly  and  specifically  authorizes  some  competent  authority  to  fix  the 
time  and  place.  This  is  illustrated  by  our  statutes  with  reference  to 
justices  of  the  peace,  which  empower  the  commissioners  court  of  the 
several  counties  to  fix  the  times  for  holding  court  for  civil  business  in 
each  justice's  precinct  within  the  county,  and  authorize  the  justice  him- 
self to  select  the  place  within  his  precinct  at  Avhich  his  court  will  be  held, 
and  also  by  the  statutes  authorizing  the  holding  of  criminal  court  by  the 
justice  at  any  time.  Such  powers  as  these  could  not  be  exercised  by 
the  commissioners  court  or  the  justices  without  this  legislative  authority ; 
but  such  authority  having  been  conferred,  the  times  and  places  designated 
thereunder  for  holding  the  courts  are  lawful.  When,  however,  the  law 
does  specifically  fix  the  time  and  place  for  holding  the  court,  these 
specifications  are  absolutely  binding,  and  the  judge  can  not  hold  court 
at  any  other  time  or  place.  Our  Constitution  provides  that  the  Legisla- 
ture may  make  provision  for  special  terms  of  the  district  courts,  and  it 
has  done  so,  and  such  terms  held  in  conformity  with  this  statute  are 
lawful.7 


•  12  Am.  and  Eng.  Enc.  of  Law,  title,  "Judge,"  14. 

7Dorst  v.  Waggoner,  3  Texas,  515;  Whitener  v.  Belknap,  89  Texas,  281,  34  S. 
W.,  594;  Wilson  v.  State,  35  S.  W.  390;  Williams  v.  Ruetzel  (Ark.),  29  S.  W., 
374;  Rev.  Stats.  1895,  art.  1113. 


10  THE   JUDICIAL    FUNCTION    OF   GOVERNMENT. 


USUAL  OFFICERS  OF  A  COURT. 

As  these  agencies  of  the  government  can  only  act  through  persons 
selected  for  that  purpose,  it  follows  that  in  every  court  there  must  be 
some  officer  authorized  to  exercise  each  phase  or  element  of  the  power 
conferred  upon  the  court.  That  is,  there  must  be  some  one  to  hear  and 
determine  causes  and  carry  the  determination  into  effect.  Experience 
has  taught  that  the  assistance  of  additional  officers  is  very  useful,  if  not 
essential,  to  the  discharge  of  these  important  functions.  Every  cause  in- 
volves matters  of  law  and  of  fact,  which  must  be  decided  in  its  determin- 
ation. In 'some  jurisdictions,  as  in  equity,  all  issues  of  both  classes  aris- 
ing in  the  case  are  decided  by  the  one  officer;  in  others,  as  in  the  com- 
mon law  courts,  issues  of  law  are  decided  by  the  judge  or  judges,  and 
issues  of  fact,  unless  arising  in  some  interlocutory  matter,  are  decided 
by  others,  known  collectively  as  a  jury.  In  the  Spanish  and  Mexican 
courts  existing  here  before  the  Texas  Eevolution,  issues  of  law  and  of 
fact  were  both  decided  in  those  courts,  which  tried  cases  in  the  first  in- 
stance by  three  officers  acting  together.  One  of  these  was  a  judge,  a 
regular  officer,  who  participated  in  the  trial  of  all  causes  determined  in 
the  court;  the  other  two  were  persons  selected  from  among  the  citizens 
where  the  court  was  sitting  to  act  in  the  particular  case.8 

But  whatever  the  system,  provision  must  be  made  for  hearing  and 
deciding  both  classes  of  issues,  those  of  law  and  those  of  fact.  The  execu- 
tive officer  of  the  court  is  he  who,  under  the  direction  of  the  judge,  upon 
orders  duly  issued,  carries  out  the  determinations  of  the  court  and  exe- 
cutes all  process  issued  as  a  final  means  of  compelling  obedience  to  the 
judgment  and  in  the  progress  of  the  trial  to  facilitate  the  hearing.  In 
common  law  he  is  denominated  a  sheriff,  constable,  or  bailiff;  in  the 
Federal  court,  he  is  known  as  the  marshal.  For  the  purpose  of  securing 
permanent  evidence  of  all  important  proceedings  and  the  results  arrived 
at,  an  officer  is  appointed  to  keep  a  record  of  all  such  matters.  He  is 
usually  called  the  clerk.  To  aid  in  the  investigation  of  the  law  and 
facts  of  each  case  other  officers,  with  us  known  as  attorneys  or  counselors 
at  law,  are  licensed  by  the  government  and  permitted  to  appear  for  the 
parties  interested  in  the  issues  pending.  These  are  not  essential  to  the 
existence  or  action  of  a  court,  but  are  usually  deemed  helpful  in  the  con- 
duct of  its  business. 

•Decree  No.  39,  Laws  Coahuila  and  Texas,  June  22,  1827. 


DISTRIBUTION    OF    JUDICIAL   POWER.  11 


DISTRIBUTION  OP  JUDICIAL  POWER. 

The  next  question  arising  as  to  any  particular  government  is,  does  this 
"government  create  only  one  agency  and  confer  upon  it  all  judicial  powers, 
authorizing  it  to  hear  and  determine  all  cases  arising  under  its  laws,  or 
does  it  create  several  agencies  and  divide  this  power  among  them?  If 
the  latter  policy  is  adopted,  then  the  further  inquiry  is,  upon  what  lines 
is  this  division  made,  and  what  kinds  of  cases  are  committed  to  each 
tribunal?  There  are  no  questions  of  more  importance  to  the  practi- 
tioner. 

Jurisdiction  is  usually  divided  among  the  several  courts  of  a  govern- 
ment with  reference  to  one  or  more  of  the  following  matters,  viz :  The 
nature  of  the  subject  matters  to  be  litigated,  including  the  rights  in- 
volved, the  wrongs  complained  of,  and  the  remedies  sought;  the  parties 
to  the  suit  and  their  residence  and  citizenship;  and  the  place  at  which 
the  cause  of  action  arose  or  the  thing  involved  in  the  suit  is  situated. 

With  us,  both  the  State  and  National  governments  have  adopted  the 
policy  of  dividing  the  authority  conferred  upon  their  respective  courts, 
and  we  find  in  each  a  system  of  tribunals,  each  of  which  has  prescribed 
powers  in  the  exercise  of  which  its  action  is  lawful  and  is  sustained  by 
the  strength  of  the  government,  but  beyond  which  it  can  not  properly 
go, — any  action  attempting  to  do  so  having  no  legal  basis  or  support. 
The  division  of  jurisdiction  among  our  State  courts  is  almost  entirely 
based  on  the  nature  of  the  subject  matter ;  the  instances  in  which  parties 
and  locality  are  taken  into  account  are  very  few.9 

JURISDICTION  OF  STATE  COURTS  AS  AFFECTED  BY  THE 
POWERS  OF  THE  FEDERAL  GOVERNMENT. 

The  general  government  and  the  government  of  the  several  States  are 
not  in  the  enforcement  of  civil  laws  enacted  by  either  regarded  as  for- 
eign to  each  other.  The  laws  of  the  United  States  are  binding  upon  the 
several  State  courts,  and  the  laws  of  each  State  are  binding  upon  the 
Federal  courts  held  within  it.  In  legislative  matters  the  powers  of 
the  State  and  Federal  governments  are  usually  exclusive  of  each  other, 
the  rule  being  that  the  State  and  the  United  States  can  not  concurrently 
exercise  direct  legislative  control  over  the  same  subject  matter.  This 
principle  of  exclusion  has  much  less  application  in  the  judicial  depart- 
ment of  the  governments.  The  courts  of  each  being  organized  to  enforce 
legal  rights,  and  the  laws  of  each  government  being  binding  upon  the 

•  See  Chapter  II,  infra. 


12  THE    JUDICIAL    FUNCTION    OF   GOVERNMENT. 

courts  of  both,  it  follows  that  these  laws  mt^st  be  considered  by  the  courts 
of  each  in  determining  the  rights  of  individuals.  To  illustrate, — the 
power  to  control  interstate  commerce  by  legislation  is  vested  exclusively 
in  Congress.  No  action  on  this  subject  by  a  State  Legislature  would  be 
of  any  force  or  effect.  It  could  not  constitute  the  basis  of  a  legal  right 
in  either  a  State  or  Federal  court.  Congress  having  legislated  with 
reference  to  this  subject  matter,  such  legislation  is  binding  upon  the 
courts  of  both  governments,  and  unless  some  other  ground  for  exclusive 
jurisdiction  in  the  Federal  courts  exists  in  a  case  arising  out  of  interstate 
commerce,  such  cause  could  be  adjudicated  in  the  State  courts,  and  the 
same  rules  would  be  applied  therein  in  determining  the  rights  of  the 
parties  under  the  Federal  legislation  as  would  be  applied  were  the  suit 
brought  in  a  Federal  court.  On  the  other  hand,  the  power  to  legislate 
with  reference  to  land  titles  is  vested  exclusively  in  the  government  of 
the  State  in  which  the  land  is  situated,  and  Congress  can  pass  no  law 
directly  affecting  such  titles ;  but  if  a  controversy  arises  between  citizens 
of  different  States  regarding  land  titles  of  two  thousand  dollars  or  more 
in  value,  these  rights,  although  dependent  upon  the  State  law,  can  in 
many  instances  be  litigated  and  determined  in  the  Federal  courts.  The 
same  is  true  in  many  other  kinds  of  cases.  There  are,  however,  many 
civil  cases  over  which  the  State  courts  have  exclusive  jurisdiction,  and 
a  few  over  which  the  Federal  courts  have  exclusive  jurisdiction.  The 
rules  for  determining  this  matter  seem  to  be  substantially  as  follows: 
As  the  State  governments  represent  the  people  more  directly  than  the 
Federal  government,  and  as  all  authority  not  granted  to  the  general 
government  by  the  Federal  Constitution,  expressly  or  by  fair  implication, 
is  vested  in  the  several  States,  it  follows  that  the  tribunals  to  which  resort 
must  ordinarily  be  made  upon  the  violation  of  any  right  are  the  State 
courts,  and  such  tribunals  will  have  jurisdiction  of  the  matter  even 
though  the  right  arises  from  or  is  regulated  by  the  Federal  Constitution 
or  act  of  Congress,  unless  there  is  an  exclusive  grant  of  jurisdiction  to 
the  Federal  courts  over  the  particular  case  or  the  class  of  cases  to  which 
it  belongs.  If  there  is  such  exclusive  grant  it  controls,  and  the  State 
courts  have  no  jurisdiction.  However,  the  grant  of  jurisdiction  to  the 
Federal  courts,  unaccompanied  by  anything  showing  an  intent  to  deny 
the  power  to  the  State  courts  to  enforce  the  right,  would  create  con- 
current jurisdiction  in  the  tribunals  of  the  two  governments;  but  if  the 
grant  of  jurisdiction  to  the  Federal  court  is  made  exclusive  by  affimative 
action  of  Congress,  within  the  scope  of  its  authority,  or  by  the  Federal 
Constitution,  then  the  State  courts  could  not  entertain  jurisdiction. 

In  criminal  matters,  the  jurisdiction  of  each  government  and  of  its 
courts  is  practically  exclusive  of  the  other.  The  same  act  may  some- 
times be  violative  of  the  laws  of  each  sovereign;  in  such  cases  the  party 
would  be  subject  to  punishment  therefor  in  either  court  according  to 
the  law  of  the  government;  and,  but  for  the  inhibition  against  being 


JURISDICTION   OF   STATE    COURTS.  13 

twice  put  in  jeopardy  for  the  same  offence,  he  might  be  punished  by 
both.  Just  how  far  this  inhibition  protects  from  double  punishment 
under  these  circumstances  does  not  seem  to  be  definitely  settled. 

The  effect  of  attempting  directly  to  give  extraterritorial  effect  to  State 
laws  will  be  further  considered  in  connection  with  jurisdiction  over  the 
person,  and  proceedings  in  rem  and  in  personam,  in  Chapter  III,  and 
jurisdiction  of  the  courts  of  Texas  over  cases  arising  beyond  the  limits 
of  the  State  will  be  discussed  in  Chapter  II,  on  "Jurisdiction." 


14 


JURISDICTION. 


CHAPTER  II. 

JURISDICTION. 
SUNDRY  DEFINITIONS  OF  THE  TERM. 

In  United  States  v.  Arredonda1  the  Supreme  Court  of  the  United 
States  says:  "The  power  to  hear  and  determine  a  cause  is  jurisdiction; 
it  is  coram  judice,  whenever  a  case  is  presented  which  brings  this  power 
into  action;  if  the  petitioner  states  such  a  case  in  his  petition  that  on 
demurrer  the  court  would  render  judgment  in  his  favor,  it  is  an  un- 
doubted case  of  jurisdiction ;  whether  on  answer  denying  and  putting  in 
issue  the  allegations  of  the  petition,  the  petitioner  makes  out  his  case, 
is  the  exercise  of  jurisdiction  conferred  by  the  filing  of  a  petition  con- 
taining all  the  requisites  and  in  the  manner  prescribed  by  law/' 

In  Ehode  Island  v.  Massachusetts2  the  same  court  defines  jurisdiction 
as  follows:  "Jurisdiction  is  the  power  to  hear  and  determine  the  sub- 
ject matter  in  controversy  between  parties  to  a  suit,  to  adjudicate  01 
exercise  any  judicial  power  over  them;  the  question  is  whether,  on  the 
case  before  the  court,  their  action  is  judicial  or  extrajudicial,  with  or 
without  the  authority  of  law  to  render  a  judgment  or  decree  upon  the 
rights  of  the  litigant  parties.  If  the  law  confers  the  power  to  render 
a  judgment  or  decree,  then  the  court  has  jurisdiction;  what  shall  be 
adjudged  or  decreed  between  the  parties,  and  with  which  is  the  right  of 
the  case,  is  judicial  action,  by  hearing  and  determining  it." 

In  Banton  v.  Wilson3  both  of  the  foregoing  definitions  are  quoted 
with  approval  by  the  Supreme  Court  of  this  State.  In  Withers  v.  Pat- 
terson4 our  Supreme  Court  says:  "The  jurisdiction  of  a  court  means 
the  power  conferred  upon  it  by  the  Constitution  and  laws  to  determine 
causes  between  parties  and  carry  its  judgment  into  effect."  In  City  of 
Brownsville  v.  Basse5  the  following  definition  is  given:  "Jurisdiction 
is  the  power  to  hear  and  determine  a  cause — the  authority  by  which 
judicial  officers  take  cognizance  of  and  decide  them.  It  gives  the  court 
capacity  to  do  both  or  either — to  hear  without  determining,  or  de- 
termine without  hearing.  *  *  *  Jurisdiction  to  determine  a  cause 
unquestionably  implies  power  and  authority  to  render  such  judgment 

>6  Peters,  709. 

2  12  Peters,  718. 

3  4  Texas,  404. 

4  27  Texas,  494. 
*43  Texas,  449. 


SUNDRY   DEFINITIONS   OF   THE   TERM.  15 

as  the  court  may  conclude  should  be  given  unless  a  limitation  is  man- 
ifest from  the  nature  of  the  proceeding,  the  character  of  the  tribunal, 
or  by  clear  and  positive  legislative  enactment/' 

With  regard  to  the  power  to  render  a  particular  judgment  and  en- 
force a  certain  penalty,  possibly  the  most  interesting  American  case  is 
Ex  parte  Lange6,  decided  by  the  Supreme  Court  of  the  United  States 
in  1874.  The  matter  is  so  ably  discussed  that  we  quote  at  length  from 
the  opinion :  "A  judgment  may  be  erroneous  and  not  void,  and  it  may 
be  erroneous  because  it  is  void.  The  distinctions  between  void  and  merely 
voidable  judgments  are  very  nice,  and  they  may  fall  under  the  one  class 
or  the  other  as  they  are  regarded  for  different  purposes. 

"We  are  of  opinion  that  when  the  prisoner,  as  in  this  case,  by  reason 
of  a  valid  judgment,  had  fully  suffered  one  of  the  alternate  punish- 
ments to  which  alone  the  law  subjected  him,  the  power  of  the  court 
to  punish  further  was  gone;  that  the  principle  we  have  discussed  then 
interposed  its  shield,  and  forbade  that  he  should  be  punished  again 
for  that  offense.    The  record  of  the  court's  proceedings,  at  the  moment 
the  second  sentence  was  rendered,  showed  that  in  that  very  case,  and  for 
that  very  offense,  the  prisoner  had  fully  performed,  completed,  and  en>- 
dured  one  of  the  alternative  punishments  which  the  law  prescribed 
for  that  offense,  and  had  suffered  five  days'  imprisonment  on  account 
of  the  other.     It  thus  showed  the  court  that  its  power  to  punish  for 
that  offense  was  at  an  end.    Unless  the  whole  doctrine  of  our  system 
of  jurisprudence,  both  of  the  Constitution  and  the  common  law,  for  the 
protection  of  personal  rights  in  that  regard,  are  a  nullity,  the  authority 
of  the  court  to  punish  the  prisoner  was  gone.     The  power  was  ex- 
hausted; its  further  exercise  was  prohibited.    It  was  error,  but  it  was 
error  because  the  power  to  render  any  further  judgment  did  not  exist. 
"It  is  no  answer  to  this  to  say  that  the  court  had  jurisdiction  of  the 
person  of  the  prisoner,  and  of  the  offense  under  the  statute.    It  by  no 
means  follows  that  these  two  facts  make  valid,  however  erroneous  it 
may  be,  any  judgment  the  court  may  render  in  such  case.    If  a  justice 
of  the  peace,  having  jurisdiction  to  fine  for  a  misdemeanor,  and  with 
the  party  charged  properly  before  him,  should  render  judgment  that 
he  be  hung,  it  would  simply  be  void.    Why  void?    Because  he  had  no 
power  to  render  such  a  judgment.    So,  if  a  court  of  general  jurisdiction 
should,  on  an  indictment  for  libel,  render  a  judgment  of  death,  or  con- 
fiscation of  property,  it  would,  for  the  same  reason,  be  void.    Or  if  on 
an  indictment  for  treason  the  court  should  render  a  judgment  of  at- 
taint, whereby  the  heirs  of  the  criminal  could  not  inherit  his  property, 
which  should  by  the  judgment  of  the  court  be  confiscated  to  the  State, 
it  would  be  void  as  to  the  attainder,  because  in  excess  of  the  authority 
of  the  court,  and  forbidden  by  the  Constitution. 

•18  Wallace,  175. 


16  JURISDICTION. 

"A  case  directly  in  point  is  that  of  Bigelow  v.  Forrest.  In  that  case, 
under  the  confiscation  acts  of  Congress,  certain  lands  of  French  Forrest 
had  been  condemned  and  sold,  and  Bigelow  became  the  holder  of  the 
title  conveyed  by  these  proceedings.  After  Forrest's  death  his  son 
and  heir  brought  suit  to  recover  the  lands,  and  contended  that  under 
the  joint  resolution  of  Congress,  which  declared  that  condemnation 
under  that  act  should  not  be  held  to  work  a  forfeiture  of  the  treal 
estate  of  the  offender  beyond  his  natural  life,  the  title  of  Bigelow  ter- 
minated with  the  death  of  the  elder  Forrest. 

"In  opposition  to  this  it  was  argued  that  the  decree  of  the  court  con- 
fiscating the  property  in  terms  ordered  all  the  estate  of  the  said  Forrest 
to  be  sold,  and  that  though  this  part  of  the  decree  might  be  erroneous,,  it 
was  not  void.  Here  was  a  case  of  a  proceeding  in  rem  where  the  property 
was  within  the  power  of  the  court,  and  its  authority  to  confiscate  and 
sell  under  the  statute  beyond  question;  but  the  extent  of  that  power 
was  limited  by  the  statute.  The  analogy  to  the  case  before  us  seems 
almost  perfect.  In  that  case  the  court  said:  'It  is  argued,  however, 
on  behalf  of  the  plaintiff  in  error  that  the  decree  of  confiscation  of  the 
District  Court  of  the  United  States  is  conclusive,  that  the  entire  right, 
title,  and  interest  of  French  Forrest  was  condemned  and  ordered  to 
be  sold;  that  as  his  interest  was  a  fee  simple  that  entire  fee  was  con- 
fiscated and  sold.  Doubtless,  a  decree  of  a  court  having  jurisdiction  to 
make  the  decree  can  not  be  impeached  collaterally,  but  under  the  act 
of  Congress,,  the  District  Court  had  no  power  to  order  a  sale  which  should 
confer  upon  the  purchaser  rights  outlasting  the  life  of  French  Forrest. 
Had  it  done  so,  it  would  have  transcended  its  jurisdiction/  The  doctrine 
of  that  case  is  reaffirmed  in  the  case  of  Day  v.  Micou  at  the  present 
term,  where  it  is  said  that  in  the  case  of  Bigelow  v.  Forrest  'we  also  de- 
termined that  nothing  more  was  within  the  jurisdiction  or  judicial 
power  of  the  District  Court  (than  the  life  estate),  and  that  consequently 
a  decree  condemning  the  fee  could  have  no  greater  effect  than  to  sub- 
ject the  life  estate  to  sale.' 

"But  why  could  it  not?  Not  because  it  wanted  jurisdiction  of  the 
property  or  of  the  offense,  or  to  render  a  judgment  of  confiscation,  but 
because  in  the  very  act  of  rendering  a  judgment  of  confiscation  it  con- 
demned more  than  it  had  authority  to  condemn.  In  other  words,  in  a 
case  where  it  had  full  jurisdiction  to  render  one  kind  of  judgment, 
operative  upon  the  same  property,  it  rendered  one  which  included  that 
which  it  had  a  right  to  render,  and  something  more,  and  this  excess 
was  held  simply  void.  The  case  before  us  is  stronger  than  that,  for  un- 
less our  reasoning  has  been  entirely  at  fault,  the  court  in  the  present 
case  could  render  no  second  judgment  against  the  prisoner.  Its  author- 
ity was  ended.  All  further  exercise  of  it  in  that  direction  was  forbidden 
by  the  common  law,  by  the  Constitution,  and  by  the  dearest  principles 
of  personal  rights,  which  both  of  them  are  supposed  to  maintain. 


SUNDRY   DEFINITIONS   OF   THE   TERM.  17 

rtThere  is  no  more  sacred  duty  of  a  court  than,  in  a  case  properly 
before  it,  to  maintain  unimpaired  those  securities  for  the  personal  rights 
of  the  individual  which  have  received  for  ages  the  sanction  of  the  jurist 
and  the  statesman;  and  in  such  cases  no  narrow  or  illiberal  construction 
should  be  given  to  the  words  of  the  fundamental  law  in  which  they  are 
embodied.  Without  straining  either  the  Constitution  of  the  United 
States  or  the  well  settled  principles  of  the  common  law,  we  have  come 
to  the  conclusion  that  the  sentence  of  the  Circuit  Court  under  which  the 
petitioner  is  held  a  prisoner  was  pronounced  without  authority,  and  he 
should  therefore  be  discharged." 

Mr.  Black,  in  his  valuable  work  on  Judgments,  devotes  a  whole 
chapter  to  "The  Validity  of  Judgments  as  Dependent  upon  Jurisdic- 
tion ;"  in  the  course  of  which  he  discusses  various  definitions  and  finally 
formulates  one  of  his  own  in  the  following  language :  ''Etymologically 
the  word  'jurisdiction'  signifies  the  power  or  duty  of  'declaring  right/ 
that  is,  of  declaring,  in  the  official  character  of  a  judge,  what  is  the  law 
applicable  to  a  given  state  of  facts,  or  what  are  the  respective  rights  of 
parties,  as  determined  by  the  application  of  law  to  the  facts  before  the 
tribunal.  The  precise  definition  of  the  term,  however,  is  rendered  diffi- 
cult by  the  complexity  of  the  elements  which  enter  into  this  power,  and 
many  of  the  explanations  found  in  the  books  are  partial  or  onesided 
according  as  they  lay  the  greater  stress  upon  the  one  or  the  other  con- 
stituents of  jurisdiction.  The  Supreme  Court  of  Ohio  has  declared 
that  'the  power  to  hear  and  determine  a  cause  is  jurisdiction,  and  it  is 
coram  judice  whenever  a  case  is  presented  which  brings  this  power  into 
action.  But  before  this  power  can  be  affirmed  to  exist,  it  must  be  made 
to  appear  that  the  law  has  given  the  tribunal  capacity  to  entertain  the 
complaint  against  the  person  or  thing  sought  to  be  charged  or  affected ; 
that  such  complaint  has  actually  been  preferred;  and  that  such  person 
or  thing  has  been  properly  brought  before  the  tribunal,  to  answer  the 
charge  therein  contained/  Now  this  definition  is  open  to  exception  in 
several  respects.  In  the  first  place,  the  first  clause  is  too  restrictive. 
As  has  been  justly  said,  it  is  in  truth  the  power  to  do  both  or  either; 
to  hear  without  determining,  or  to  determine  without  hearing.  But 
even  this  does  not  go  far  enough.  For  jurisdiction  is  not  merely  the 
authority  to  determine  a  controversy,  but  also  the  power  to  announce 
the  sentence  of  the  law,  and  to  announce  it  in  such  a  manner  that  the 
legal  rights  of  the  parties  shall  be  changed  or  modified  and  that  new 
relations  shall  spring  into  existence.  And,  further,  it  sometimes  in- 
cludes the  power  to  command  or  forbid  particular  action  or  to  award  a 
particular  remedy,  as  in  the  case  of  mandamus,  injunction,  or  specific 
performance.  In  other  words,  jurisdiction  is  the  power  to  set  in  opera- 
tion the  sanctions  of  the  law.  Again,  while  the  preferring  of  a  com- 
plaint or  petition  is  the  usual  and  regular  mode  of  bringing  a  contro- 
2 — Pleading 


18  JURISDICTION. 

versy  to  the  cognizance  of  a  court,  it  would  be  incorrect  to  make  the 
jurisdiction  depend  upon  the  technicality  or  sufficiency  in  law  of  the 
case  so  presented.  It  is  undoubtedly  a  principle  of  natural  justice  and 
of  the  law  of  the  land  that  a  person  who  is  proceeded  against  in  a 
court  of  law  should  have  a  full  and  fair  opportunity  to  make  his  de- 
fense. But  if  he  is  denied  this  right,  it  seems  to  be  rather  an  irregu- 
larity or  failure  of  justice,  on  the  part  of  the  tribunal,  than  a  fatal  de- 
fect in  its  jurisdiction.  If  the  defendant  is  duly  served  with  process 
and  so  brought  into  court,  that  confers  jurisdiction  over  him,  and  it  is 
hot  affected  by  any  subsequent  illegal  or  arbitrary  dealing  with  his 
rights.  Nevertheless  the  Supreme  Federal  Court  has  held  that  an  op- 
portunity to  the  defendant  to  be  heard  is  an  essential  element  of  juris- 
diction— a  decision  which  perhaps  can  be  sustained  on  the  theory  that 
the  court,  by  the  denial  of  such  opportunity,  revokes  its  process,  and 
puts  the  defendant  again  out  of  court,  but  which  otherwise  appears  to 
put  an  undue  strain  upon  the  meaning  of  the  word. 

"We  should  therefore  define  jurisdiction  as  follows :  It  is  the  power 
and  authority  constitutionally  conferred  upon  (or  constitutionally  re- 
cognized as  existing  in)  a  court  to  pronounce  the  sentence  of  the  law,  or 
to  award  the  remedies  provided  by  law,  upon  a  state  of  facts,  proved 
or  admitted,  referred  to  the  tribunal  for  decision,  and  authorized  by  law 
to  be  the  subject  of  investigation  or  action  by  that  tribunal,  and  in  favor 
of  or  against  persons  (or  a  res)  who  present  themselves,  or  who  are 
brought,  before  the  court  in  some  manner  sanctioned  by  law  as  proper 
and  sufficient.  If  this  definition  appears  complicated,  it  is  because  of 
the  necessity  of  grouping  three  very  different  elements.  For  jurisdiction 
naturally  divides  itself  into  three  heads.  In  order  to  the  validity  of  a 
judgment,  the  court  must  have  jurisdiction  of  the  persons,  of  the  sub- 
ject matter,  and  of  the  particular  question  which  it  assumes  to  decide. 
It  can  not  act  upon  persons  who  are  not  legally  before  it,  upon  one 
who  is  not  a  party  to  the  suit,  upon  a  plaintiff  who  has  not  invoked  its 
arbitrament,  or  upon  a  defendant  who  has  never  been  -notified  of  the 
proceeding.  It  can  not  adjudicate  upon  a  subject  which  does  not  fall 
within  its  province  as  defined  or  limited  by  law.  Neither  can  it  go  be- 
yond the  issues  and  pass  upon  a  matter  which  the  parties  neither  submit- 
ted nor  intended  to  submit  for  its  determination." 


SUGGESTED  DEFINITION. 

The  jurisdiction  of  a  court  is  its  authority  to  represent  and  act  for 
the  sovereign  in  the  exercise  of  so  much  of  the  judicial  function  of  the 
government  as  is  delegated  to  it. 

The  judicial  function  has  three  distinct  aspects : 

(1)     The  power  to  hear  issues. 


SUGGESTED  DEFINITION.  19 

(2)  The  power  to  adjudge  issues,  including  the  determination  of 
the  issues,  and  the  announcement  of  the  sanction  of  the  law  applicable 
thereto;  and 

(3)  The  power  to  enforce  the  conclusion  thus  arrived  at. 

The  jurisdiction  of  any  particular  court  may  include  the  exercise  of 
any  number  or  all  of  these  powers. 

Issues  are  matters  of  law  or  fact  or  both  affirmed  by  one  person  and 
denied  by  another,  regarding  alleged  legal  rights  and  past,  existing,  or 
apprehended  violations  thereof.  Courts  do  not  adjudicate  abstract 
questions.  Their  work  is  always  with  concrete  cases.  To  illustrate, — 
the  Constitution  does  not  say  that  district  courts  shall  have  jurisdiction 
over  all  questions  regarding  title  to  real  estate,  but  that  they  shall  have 
jurisdiction  to  try  all  suits  involving  title  to  land.  However  interesting 
or  important  the  question  may  be,  the  court  has  no  concern  with  it  until 
it  is  involved  in  some  suit  to  which  its  jurisdiction  has  actually  attached. 
It  is  true  that  the  general  authority  to  hear  suits  of  the  kind  to  which 
the  particular  controversy  belongs  must  exist,  but  the  actual  right  to 
hear  and  determine  any  particular  question  only  arises  when  a  suit  in- 
volving such  question  comes  into  being.  That  is,  when  a  controversy 
involving  the  point  is  presented  to  the  court  for  its  decision  and  proper 
steps  have  been  taken  to  bring  within  its  power  all  the  necessary  parties 
to  such  controversy.  Thus  A  has  two  notes  against  B  and  both  are 
due;  he  sues  on  one  only  and  gets  service.  If  the  defendant  appears 
and  A  produces  both  notes  and  wishes  to  recover  on  both,  he  can  not 
do  so.  He  can  only  have  judgment  on  the  one  sued  on,  because  the 
second  has  not  been  brought  within  the  jurisdiction  of  the  court.  Again, 
if  he  had  sued  on  one  only  and  got  service  as  to  that,  and  subsequently 
amended  his  petition  so  as  to  include  the  second  and  gave  no  notice  of 
the  amendment  to  B,  and  B  failed  to  answer  and  judgment  by  default 
were  taken  against  him,  including  the  amount  due  on  the  second  note, 
and  these  facts  affirmatively  appeared  on  the  record,  so  much  of  the 
judgment  as  was  based  on  the  second  note  would  be  void  because  as  to 
it  jurisdiction  had  not  been  got  over  B. 

In  short,  courts  can  only  decide  suits,  and  suits  are  not  abstract 
questions,  but  actual  controversies  properly  submitted  to  a  court  about 
designated  subject  matter  between  parties,  properly  brought  within  the 
power  of  the  court. 

In  theory  of  law  there  must  always  be  two  parties  before  the  court, 
though  in  some  proceedings  the  second  party  does  not  actually  appear 
and  represent  his  interests,  and  in  some  kinds  of  cases  he  is  very  hard 
to  discover. 

He  who  presents  the  issue  to  the  court,  affirming  his  right  in  the  sub- 
ject matter,  is  the  actor  or  plaintiff.  He  against  whom  the  right  is 
sought  to  be  enforced  and  the  penalty  or  redress  to  be  adjudged,  is  the 
reus  or  defendant.  The  rights  claimed  by  the  plaintiff,  wrongs  charged 


20  JURISDICTION. 

against  the  adverse  party,  and  the  remedies  sought,  constitute  the  sub- 
ject matter  of  the  litigation.  The  issues  must  be  presented  to  the  court 
in  substantial  compliance  with  the  methods  of  procedure  provided  by 
law,  and  matters  not  so  presented  are  not  within  the  active  jurisdiction 
of  the  court. 


Hearing  Issues. 

Hearing  issues  embraces  all  the  steps  taken  in  the  presentation  of  the 
cause  to  the  court  and  the  investigation  of  all  matters  of  law  and  fact 
involved  in  the  litigation.  It  includes  all  pleadings  by  the  plaintiff  and 
the  submission  of  himself  'and  his  cause  to  the  jurisdiction  of  the  court ; 
the  process  for,  and  methods  of,  obtaining  jurisdiction  over  the  person 
of  the  defendant;  all  pleadings  by  the  defendant:  all  efforts  to  acquire 
actual  control  of  testimony,  by  compelling  personal  attendance  of  wit- 
nesses; the  taking  of  depositions  and  procuring  and  securing  docu- 
mentary evidence;  the  presentation  to  the  court  of  all  motions  and  plead- 
ings ;  the  introduction  of  testimony's  argument  of  the  case ;  and  in  short, 
everything  done  in  and  by  the  court  to  enable  it  to  properly  investigate 
and  understand  the  issues. 


Adjudging. 

By  adjudging  is  meant  the  settlement  and  determination  of  all  ques- 
tions, both  of  law  and  of  fact,  presented  to  the  court  in  the  trial;  the 
selection  and  application  of  the  lawful  remedies;  and  the  pronunciation 
of  the  final,  determinate  will  of  the  sovereign  with  regard  to  the  litiga- 
tion. It  includes  all  rulings  by  the  court,  and  all  findings  of  fact  by 
court  or  jiiry,  during  the  trial  and  in  the  final  determination  of  the  case. 
The  most  important  of  these  adjudications  are  made  in  passing  on  issues 
of  law  raised  by  demurrer,  or  by  objection  to  testimony,  and  in  cases 
tried  by  the  judge  without  a  jury,  in  his  findings  as  to  the  facts,  and  his 
conclusions  as  to  the  law,  and  pronouncing  and  entering  judgment  in  the 
cause ;  and  in  cases  tried  by  jury,  in  the  charge  of  the  court,  the  verdict 
of  the  jury  and  the  judgment  entered  thereupon. 


Enforcing  the  Determination. 

Enforcing  the  result  comprises  the  supervision  and  control  over  the 
issuance  and  execution  of  all  final  processes  against  the  person  or  prop- 
erty of  the  losing  party  to  which  the  successful  party  is  entitled  in  order 
to  make  effectual  all  the  rights  adjudged  to  him  in  the  litigation. 


POWERS   ORDINARILY    CONFERRED   UPON    COURTS.  21 


POWERS  ORDINARILY  CONFERRED  UPON  COURTS. 

The  creation  of  a  court  carries  with  it,  prima  facie,  a  grant  of  each 
of  the  three  powers  enumerated  above,  so  far  as  their  exercise  may  be 
proper,  in  order  to  enable  it  to  accomplish  the  purposes  for  which  it  is 
established;  and  unless  there  be  something  in  the  creative  act  or  acts 
showing  a  different  intent  on  the  part  of  the  sovereign,  all  these  powers 
may  be  exercised  by  it.  While  this  is  the  general  rule,  still  a  tribunal 
may  be  judicial  in  its  character  which  does  not  possess  all  these  powers, 
or  a  tribunal  which  possesses  all  of  them,  as  to  some  matters,  may  be 
authorized  to  exercise  only  onexor  the  other  in  certain  cases  as  to  which 
the  other  power  or  powers  are  not  conferred  upon  it.  A  master  in 
chancery  or  an  auditor  may  be  authorized  to  hear  some  portions  of  a 
case  and  report  the  result  to  the  court,  without  having  authority  to 
finally  determine  anything,  and  his  action  in  so  doing  would  be  judicial 
in  its  character.  An  appellate  court  may  be  authorized  to  hear  and 
consider  appeals,  and  to  reverse  the  judgment  and  remand  the  case  to 
the  lower  court  for  further  proceedings,  or  to  approve  the  judgment  and 
remand  the  case  to  the  inferior  court  for  the  purpose  of  enforcing  the 
judgment  as  approved,  and  in  each  instance  its  action  would  be,  strictly 
speaking,  judicial ;  or  an  appellate  court  may  be  given  the  right,  under 
some  circumstances,  to  affirm  the  judgments  of  lower  courts  upon  cer- 
tificate, without  reference  to  the  merits,  and  its  action  in  so  doing  would 
also  be  judicial ;  yet  in  neither  of  these  instances  is  the  tribunal  clothed 
by  law  with  authority  to  exercise  all  three  of  the  powers  enumerated. 


DISTRIBUTION  OP  JUDICIAL  POWER  UNDER  STATE  AND 
FEDERAL  GOVERNMENTS. 

In  a  government  formed  by  written  constitution,  it  is  almost  uni- 
versally true  that  no  court  is  established  without  some  fairly  definite 
expression  of  the  will  of  the  sovereign  as  to  the  extent  of  its  authority. 
These  bounds,  whether  expressed  or  implied,  are  controlling,  and  hence 
the  power  of  every  court  is  restricted;  first,  as  to  the  issues  which  it 
may  hear,  and  the  manner  of  determining  them;  second,  as  to  the  judg- 
ments which  it  may  render, — this  limitation  is  affected  both  by  the  is- 
sues the  court  may  adjudge  and  the  penalties  or  remedies  it  may  apply; 
and  third,  as  to  the  means  it  may  employ  to  carry  its  judgments  into 
effect.  These  limitations  may  be  expressly  imposed  or  they  may  result 
from  the  division  of  power  among  several,  classes  of  courts  in  such  way 
as  to  fairly  indicate  that  the  jurisdiction  of  each  class,  or  of  some  of 
them,  is  exclusive  of  that  of  other  classes.  This  division  of  power 
may  be  based  upon  the  character  of  the  subject  matter  involved  in  the 


22  JURISDICTION. 

suit,  or  upon  the  character  or  status  of  the  parties,  or  upon  territory 
or  locality. 

In  this  State  the  division  is  now  made  almost  exclusively  with  ref- 
erence to  subject  matter,  and  it  may  be  said  to  be  the  sole  basis  of  such 
division  so  far  as  original  jurisdiction  in  ordinary  cases  is  concerned. 
The  exceptions,  if  any,  apply  only  in  proceedings  of  a  special  nature,, 
such  as  administration,  forcible  entry  and  detainer,  etc. 

Character  or  status  of  the  parties  to  the  suit  is  not  much  regarded  in 
our  State  system,  though  it  is  still  a  very  important  matter  in  the 
Federal  courts.  The  Federal  Constitution  gives  the  Federal  courts  juris- 
diction over  "all  cases  affecting  embassadors,  other  public  ministers  and 
consuls;  *  *  *  controversies  to  which  the  United  States  shall  be  a 
party:  controversies  between  two  or  more  States;  between  a  State  and 
citizens  of  another  State ;  between  citizens  of  different  States ;  *  *  * 
and  between  a  State  or  the  citizens  thereof  and  foreign  States,  citizens  or 
subjects."7 

This  provision  and  laws  passed  in  pursuance  of  it  are  the  basis  of 
much  of  the  jurisdiction  of  these  courts,  and  such  jurisdiction  is  entirely 
dependent  upon  the  status  or  citizenship  of  the  parties.  This  jurisdic- 
tion includes  some  of  the  most  important  matters  committed  to  the  courts 
of  the  Federal  government. 

Locality  is  now  rarely  regarded  as  a  factor  in  fixing  jurisdiction. 
Formerly  it  had  much  more  influence  in  the  minds  of  the  lawmakers,  and 
the  place  where  the  thing  involved  in  the  litigation  was  situated,  or 
where  the  cause  of  action  arose,  or  where  the  defendant  lived  was  fre- 
quently the  controlling  consideration  in  granting  power  to  the  court  to 
hear  and  determine  the  cause.  This  is  no  longer  true  in  Texas,  and  the 
potential  jurisdiction  of  a  court  in  this  State  is  now  rarely  made  to 
depend  upon  a  question  of  locality.  While  the  term  territorial  jurisdic- 
tion is  still  used,  it  is,  in  almost  all  instances,  an  incorrect  expression 
for  venue.  For  convenience  to  the  court  or  to  the  parties,  selection  is 
frequently  made  among  courts  having  concurrent  potential  jurisdiction 
and  one  chosen  with  reference  to  its  locality  is  fixed  upon  as  that  in  which 
the  venue  in  certain  suits  may  be  compulsorily  laid.  Such  selection 
neither  adds  to  the  potential  jurisdiction  of  the  court  so  chosen  nor  takes 
from  that  of  the  others  of  its  class.  The  selection  is  nothing  more  than 
the  designation  of  one  among  many  courts,  any  one  of  which  under  the 
law  has  authority  to  try  the  case,  as  the  one  in  which  the  parties  can 
be  compelled  to  litigate.  If  suit  be  brought  in  any  one  of  the 
courts  having  concurrent  jurisdiction  and  the  defendant  desires  to  avail 
himself  of  the  privilege  allowed  him  by  law  of  being  sued  in  the  par- 
ticular court  where  the  venue  is  fixed,  he  must  plead  his  privilege  in 
due  order,  or  it  will  be  lost,  and  the  court  in  which  the  suit  is  brought 

7  Const.  U.  S.,  art.  Ill,  sec.  2. 


POTENTIAL   AND   ACTIVE   JUEISDICTION.  23 

would  adjudicate  the  cause  and  bind  him  and  the  subject  matter  of  the 
suit.  If  the  defendant  does  claim  his  privilege  and  it  is  denied  him, 
and  he  is  forced  to  try  the  case  in  the  court  where  it  had  been  brought, 
such  ruling  would  be  error  which,  upon  appeal,  would  necessitate  a  re- 
versal of  the  judgment,  but  it  would  not  render  the  judgment  void  and 
subject  it  to  collateral  attack.  Potential  jurisdiction  is  always  a  ques- 
tion of  authority  to  represent  the  sovereign.  Venue  in  civil  cases  is  a 
matter  of  privilege  to  parties.  To  illustrate:  The  Constitution  confers 
upon  the  district  courts  authority  to  try  all  cases  involving  the  title  to 
land.  This  is  a  grant  of  exclusive  jurisdiction,  and  no  court  of  any 
other  class  can  pass  upon  and  adjudge  such  a  case,  and  any  attempt  to 
do  so  would  be  void.  On  the  other  hand,  the  statute  provides  that  suits 
for  trial  of  title  to  land  must  be  brought  in  the  county  where  the  whole 
or  any  part  thereof  lies.  This  is  fixing  venue,  and  if  the  suit  for  the 
land  should  be  brought  in  some  other  county  than  that  in  which  it  was 
situated,  the  defendant  would  have  the  right  to  suggest  to  the  court 
that  the  venue  was  improperly  laid,  and  upon  such  suggestion  made  in 
due  time,  it  would  be  the  duty  of  the  court  to  dismiss  the  suit,  but  if  it 
did  not  do  so,  its  judgment  with  reference  to  the  title  to  the  land  would 
be  binding,  and  the  party  dissatisfied  with  it  could  only  be  relieved  by 
appeal  or  writ  of  error.8 


POTENTIAL  AND  ACTIVE  JURISDICTION. 

The  potential  jurisdiction  of  a  court  is  the  right  conferred  upon  it  by 
the  sovereign  to  exercise  judicial  power.  It  embraces  all  matters  over 
which  the  court  is  empowered  by  law  to  exercise  authority.  Active  juris- 
diction is  potential  jurisdiction  in  actual  operation;  that  is,  the  power 
of  the  court  actually  and  lawfully  applied  to  some  particular  subject 
matter  or  person.  Potential  jurisdiction  is  essential  to  the  court's  power 
in  any  case;  but  it  lies  dormant  and  accomplishes  nothing  until  it  is 
actively  called  into  exercise  as  to  some  particular  subject  matter  embraced 
within  the  general  grant  of  power.  Active  jurisdiction  results  from  the 
act  of  the  parties  in  the  particular  case,  or  from  the  act  of  the  particular 
court,  performed  at  the  instance  and  upon  the  application  of  the  proper 
parties,  under  authority  of  the  sovereign.  Potential  jurisdiction  results 
from  the  act  of  the  sovereign  alone.  It  can  never  be  conferred  or  ex- 
tended by  the  act  of  a  party,  or  by  the  concurrent  act  of  all  the  parties, 
to  a  litigation.  It  is  prerequisite  to  the  exercise  of  active  jurisdiction. 
The  court  is  not  the  agent  of  the  sovereign  except  in  matters  within  its 
potential  jurisdiction,  and  this  the  consent  of  the  parties  can  neither  en- 
large nor  diminish.  The  active  jurisdiction  can  not  go  beyond  the  poten- 

8  Chapter  X,  on  "Venue,"  infra. 


24  JUKISDICTION. 

tial,  and  it  may  be  much  less  extensive.  Thus,  each  district  court  in 
the  State  of  Texas  has  potential  jurisdiction  over  all  questions  involving 
title  to  land  situated  in  the  State,  but  no  one  of  these  courts  can  of  its 
own  motion  determine  any  abstract  proposition  of  law  affecting  any  such 
title.  Its  power  lies  in  abeyance,  waiting  action  by  some  party  at  in- 
terest by  which  he  shall  invoke  its  exercise  in  his  behalf,  but,  upon  such 
application  by  him,  this  power  comes  into  actual  operation  as  to  the 
particular  tract  of  land  subjected  to  it.  If,  however,  the  party  should 
own  another  tract  which  was  also  being  trespassed  upon  in  the  same 
manner  as  the  first,  invoking  the  jurisdiction  as  to  the  first  would  in 
nowise  affect  the  second;  as  to  it  the  potential  jurisdiction  would  continue 
to  lie  dormant,  until  by  some  appropriate  means  the  exercise  of  this 
power  should  be  requested  as  to  it.9 


JURISDICTION  OVER  THE  PERSON  AND  OVER  THE  SUB- 
JECT MATTER. 

Another  classification  of  jurisdiction,  based  upon  the  nature  of  the 
object  upon  which  it  is  to  operate,  distinguishes  between  jurisdiction 
over  the  subject  matter  and  jurisdiction  over  the  person.  This  is  a  real 
distinction  and  is  recognized  by  all  the  authorities,  elementary  and 
judicial.  The  former  embraces  the  rights,  wrongs,  and  remedies  in- 
volved in  the  litigation;  the  latter  embraces  the  persons  whose  interests 
are  sought  to  be  affected  by  the  litigation.  This  distinction  exists  in 
both  potential  and  active  jurisdiction ;  that  is,  there  is  potential  jurisdic- 
tion over  the  subject  matter  and  active  jurisdiction  over  it;  and  there 
is  potential  jurisdiction  over  persons  and  active  jurisdiction  over  them. 
It  is  important  to  keep  this  constantly  in  mind,  since  some  confusion 
of  thought,  and  much  confusion  of  expression,  have  arisen  from  failure 
to  do  so,  and  since  some  of  the  rules  announced  with  reference  to  this 
subject  can  not  be  understood  and  reconciled  in  any  other  way.  There 
are  numerous  well  considered  authorities  that  hold  as  a  legal  doctrine 
that  consent  can  not  give  jurisdiction  over  the  subject  matter.  If  juris- 
diction here  means  potential  jurisdiction,  and  give  means  to  originate  or 
bring  into  being,  the  rule  is  unquestionably  correct,  for  no  convention  of 
parties  can  change  the  law,  and  give  to  an  agency  of  the  sovereign  author- 
ity to  represent  and  act  for  it  without  its  consent,  and  an  agreement  to 
such  effect,  in  the  most  solemn  form,  even  if  recognized  and  acted  on  by 
the  judge,  would  be  clearly  ineffectual,  and  such  action  void.  To  illus- 

*  Wynns  v.  Underwood,  1  Texas,  48 ;  Sutherland  v.  De  Leon,  1  Texas,  309 ; 
Able  v.  Bloomfield,  6  Texas,  263;  Chambers  v.  Hodges,  23  Texas,  112;  Hamblin  v. 
Warneeke,  31  Texas,  91;  Flanagan  v.  Pierce,  27  Texas,  79;  Ward  v.  McKenzie, 
33  Texas,  315. 


JURISDICTION    OVER   PERSON    AND    SUBJECT    MATTER.  25 

trate :  If  all  parties  to  a  controversy  regarding  an  alleged  libel  should 
agree  that  an  action  therefor  should  be  brought  in  a  county  court,  such 
an  agreement  would  be  without  effect,  and  the  court  would  have  no  au- 
thority to  act  thereunder. 

But  if  the  reference  in  the  rule  be  to  active  jurisdiction  within  the 
limits  of  the  potential,  and  by  giving  is  meant  bringing  about  conditions 
authorizing  regular  and  proper  exercise,  then  it  would  seem  the  doctrine 
is  incorrect,  for  upon  consent  in  such  case,  or  even  waiver  of  privilege,  a 
court  having  potential  jurisdiction  over  the  subject  matter  may  properly 
exercise  active  jurisdiction  over  it,  which  it  could  not  do  but  for  such  con- 
sent or  waiver.  In  this  imperfect  sense  consent  does  give  jurisdiction 
over  the  subject  matter.  The  illustration  given  above  with  regard  to 
suits  for  the  recovery  of  land  is  directly  in  point.  The  statute  provides 
that  such  suits  must  be  brought  in  the  county  where  the  land  or  a  part 
thereof,  is  situated ;  but  it  is  settled  beyond  question  that  such  a  suit  may 
be  brought  in  the  district  court  of  a  county  where  no  part  of  the  land 
lies,  and  upon  agreement  of  the  parties,  or  even  upon  the  failure  to  inter- 
pose an  objection  in  the  proper  time  and  manner,  such  court  must  hear 
and  determine  the  cause.10 

In  such  case  the  potential  jurisdiction  over  the  subject  matter  exists, 
and  consent  or  waiver  of  parties  properly  subjects  the  property  to  the  exer- 
cise of  active  jurisdiction. 

Again,  there  are  equally  respectable  and  quite  as  numerous  authorities 
which  say  that  consent  can  give  jurisdiction  over  the  person.  If  here  the 
term  jurisdiction  is  used  to  signify  active  jurisdiction,  and  giving  means 
to  bring  within  the  proper  operation  of,  this  rule  is  correct.  If  there  be 
two  or  more  courts  having  potential  jurisdiction  over  a  party,  and  the  law 
gives  to  him  the  privilege  of  being  subject  to  the  active  jurisdiction  of 
only  one  of  them,  and  he  is  sued  in  some  other,  he  may  plead  his  privilege 
and  defeat  the  exercise  of  active  jurisdiction  by  that  court ;  but  if  he  con- 
sents to  be  sued  there,  or  even  does  not  insist  upon  his  immunity  from 
such  suit  in  due  time,  by  so  doing  he  loses  his  privilege  and  becomes  fully 
subject  to  the  jurisdiction  of  the  court  in  which  the  suit  is  pending,  and 
in  this  sense  has,  by  consent,  conferred  jurisdiction  over  himself  upon 
the  court. 

But  if  in  this  statement  jurisdiction  means  potential  jurisdiction,  and 
giving  means  originating  or  bringing  into  being,  so  that  the  rule  teaches 
that  consent  of  parties  can  originate  in  a  court  potential  jurisdiction  as  to 
persons,  then,  in  my  judgment,  it- is  incorrect.  Unless  the  law  give  the 
court  general  authority  to  adjudicate  cases  between  such  persons  as  are 
parties  to  the  litigation,  consent  by  these  persons  can  <not  give  such  au- 
thority. Suppose  a  controversy  should  arise  between  two  States  of  the 

10  Rev.  Stats.  1895,  art.  1194,  sec.  14;  Morris  v.  Runnels,  12  Texas,  177;  De  la 
Vega  v.  League,  64  Texas,  214. 


26  JUEISDICTION. 

Union,  and  they  should  agree  that  a  court  of  some  third  State,  having  jur- 
isdiction over  questions  of  the  character  of  that  in  dispute  between  them, 
should  hear  and  determine  the  matter;  could  such  agreement  confer  on 
such  tribunal  power  to  act  as  a  court  over  these  States,  and  to  exercise 
jurisdiction  as  such,  and  bind  either  of  them  by  the  result  as  by  a  judg- 
ment? This  would  seem  impossible.  The  proceeding  might  be  good  as 
an  arbitration,  and  the  decision  binding  as  an  award,  but  as  a  judicial  pro- 
ceeding and  adjudication  it  would  clearly  be  a  nullity.  This  is  an  extreme 
case,  but  it  shows  the  correctness  of  the  position. 

The  true  doctrine  seems  to  be  that  consent  can  never  originate  potential 
jurisdiction  over  either  the  subject  matter  or  the  person,  nor  supply  the 
place  of  it ;  that  such  authority  comes  alone  from  the  sovereign ;  but  that, 
if  potential  jurisdiction  exists  in  several  courts  over  the  subject  matter 
and  the  person,  but  there  is  a  privilege  of  having  the  suit  brought  in 
some  one  of  them,  such  privilege,  whether  based  upon  subject  matter  or 
person,  may  be  waived  by  the  parties,  and  the  court  in  which  the  pro- 
ceeding is  brought  will  be  bound  by  such  waiver  and  must  hear  and  de- 
termine the  cause.  If  the  rules  stated  above  be  understood  as  follows: 
That  in  the  one  which  denies  the  efficacy  of  consent  the  jurisdiction 
spoken  of  is  potential,  and  giving  means  originating;  and  that  in  the  one 
which  affirms  the  efficacy  of  consent  the  jurisdiction  spoken  of  is  active, 
and  giving  means  properly  subjecting  to,  the  whole  matter  is  simple  and 
the  rules  consistent. 

Unfortunately  these  distinctions  are  not  always  kept  in  mind,  and  there 
are  a  number  of  authorities  which  have  undertaken  to  combine  these  rules, 
stating  them  substantially  as  follows :  Consent  can  not  give  jurisdiction 
over  subject  matter,  but  can  over  the  person.  Confusion  is  inevitable, 
because,  as  we  have  seen,  the  words  "jurisdiction"  and  "giving"  are  used 
in  different  senses  in  the  two  rules,  and  in  the  formula  resulting  from  the 
combination,  they  are  used  as  having  the  same  meaning  in  both.  The 
formula  must  necessarily  be  incorrect,  therefore,  as  to  one  or  the  other. 
If  potential  jurisdiction  is  meant,  and  "giving"  is  originating,  it  is 
wrong  to  say  that  consent  can  give  jurisdiction  over  the  person ;  if  active 
jurisdiction  is  meant,  and  "giving"  means  subjecting  to,  it  is  incorrect  to 
say  that  consent  can  not  give  jurisdiction  over  the  subject  matter. 

Presumably  one  reason  that  this  confusion  has  arisen,  or  at  least  that 
this  distinction  has  not  been  kept  in  mind  more  clearly,  is  the  fact  that 
in  the  division  of  potential  jurisdiction  among  our  State  courts,  little  re- 
gard, if  any,  is  paid  to  persons,  but  the.whole  division  is  made  with  regard 
to  subject  matter.  So  it  may  be  said  with  fair  accuracy  that  every  court 
in  Texas,  having  original  jurisdiction,  has  potential  jurisdiction  over  all 
persons  within  the  State,  but  that  no  court  in  the  State  has  such  general 
jurisdiction  over  all  subject  matters.  As  to  the  latter,  the  potential  jur- 
isdiction of  each  court  is  greatly  limited.  From  this  condition  it  results 
that  in  almost  every  instance  where  the  question  of  jurisdiction  as  to 


POTENTIAL   AND   ACTIVE   JURISDICTION.  27 

subject  matter  arises,  it  relates  to  potential  jurisdiction,  and  the  rule,  as 
announced  in  the  particular  case,  denying  the  efficacy  of  consent,  is  cor- 
rect; while  in  almost  every  case  in  which  controversy  as  to  jurisdiction 
over  the  person  arises,  it  relates  to  active  jurisdiction,  and  the  rule  as 
announced  in  the  particular  case  affirming  the  efficacy  of  consent  is  cor- 
rect. So  the  practical  working  of  the  rules  is  not  often  harmful.  It 
is  well,  however,  to  get  clear  conceptions  of  the  meaning  and  extent  of 
each. 


BOTH    POTENTIAL    AND    ACTIVE    JURISDICTION    OVER 
BOTH  SUBJECT  MATTER  AND   PERSON  REQUISITE. 

Leaving  out  all  questions  of  mere  phraseology,  it  may  be  stated  as  an 
invariable  rule  that  before  a  court  can  lawfully  hear  any  case  and  render 
a  judgment  therein,  it  must  have  potential  jurisdiction  over  the  subject 
matter,  and  the  parties  sought  to  be  bound  thereby;  and  further,  to  en- 
able it  to  render  a  judgment  binding  personally  on  the  parties,  such  per- 
sons must  be  subjected  fully  to  its  active  jurisdiction;  and  also  to  enable 
it  to  bind  any  particular  thing,  such  thing  must  be  brought  within  its 
active  jurisdiction.  All  persons  whose  rights  in  the  thing  are  to  be  af^ 
fected  in  any  manner  must  be  notified  in  some  way,  though  in  some  cases 
it  is  not  essential  that  they  be  brought  fully  under  the  jurisdiction  of  the 
court.  These  matters  are  fully  considered  in  the  subsequent  chapter  on 
proceedings  in  rem,  in  personam,  and  quasi  in  rem. 


RECAPITULATION. 

Jurisdiction  is  authority  to  exercise  the  judicial  function.  This  func- 
tion consists  in  hearing  issues,  determining  and  pronouncing  the  definite 
will  of  the  sovereign  thereon,  and  executing  such  will. 

Potential  jurisdiction  is  the  full  extent  of  authority  conferred  by  the 
sovereign. 

Active  jurisdiction  is  the  application  of  this  potential  jurisdiction  to 
definite  subject  matter,  things,  or  persons.  It  can  never  extend  to  mat- 
ters or  persons  not  embraced  in  the  potential  jurisdiction  of  the  court. 

Potential  jurisdiction  can  not  be  conferred  either  by  consent  of  one 
party  or  by  agreement  of  all  parties,  but  must  be  derived  from  the  sov- 
ereign. 

Subjection  to  active  jurisdiction  may  be  effected  by  act  of  the  court, 
or  by  voluntary  act  of  the  party  or  parties. 

Jurisdiction  is  divided  among  the  several  courts  with  reference,  first, 
to  subject  matter;  second,  to  persons;  and  third,  to  locality.  In  our 
State  the  division  now  existing  is  dependent  in  a  large  majority  of  in- 


28  JURISDICTION. 

stances  upon  the  first;  in  a  few  instances  upon  the  second;  and  in  very 
few,  if  any,  upon  the  third. 

Care  must  be  taken  to  distinguish  between  venue  and  territorial  juris- 
diction. The  former  is  a  matter  of  privilege  and  may  be  waived;  the 
latter,  in  the  rare  instances  in  which  it  exists,  is  fundamental,  and  can 
not  be  affected  by  waiver  or  consent  of  parties. 


CONCURRENT  AND  EXCLUSIVE  JURISDICTION. 

Our  judicial  system  consists  of  a  series  of  different  kinds  or  classes  of 
courts  whose  jurisdiction  is  fixed  with  reference  to  each  other.  Commonly 
each  court  of  every  class  has  the  same  potential  jurisdiction  as  every  other 
court  of  its  class.  Original  jurisdiction  over  the  same  matter  is  some- 
ttimes,  though  rarely,  committed  to  courts  of  different  classes  or  kinds. 
All  courts  of  the  same  class,  whose  potential  jurisdiction  is  the  same,  are, 
as  among  themselves,  denominated  courts  of  concurrent  .jurisdiction. 
Jurisdiction  over  such  litigation  as  is  committed  exclusively  to  one 
class  of  courts  is,  as  between  them  and  courts  of  other  classes,  termed 
exclusive.  In  the  exceptional  instances  in  which  courts  of  different 
classes  have  some  common  jurisdiction,  it  is  said  that  the  jurisdiction 
of  these  courts  as  to  such  matters  is  concurrent.  To  illustrate :  All  of  the 
district  courts  of  the  State  of  Texas  are  considered,  as  among  themselves, 
of  concurrent  jurisdiction ;  as  considered  with  reference  to  justices'  courts, 
each  district  court  is  a  court  of  exclusive  jurisdiction,  for  it  has  no  power 
in  common  with  the  justices'  courts.  District  courts  and  county  courts 
can  not  correctly  be  denominated  courts  of  concurrent  jurisdiction,  for 
they  belong  to  different  classes,  and  the  limits  of  their  jurisdiction  are  by 
no  means  the  same ;  yet  as  to  a  few  matters  they  exercise  concurrent  jur- 
isdiction. Again,  when  we  say  that  the  jurisdiction  of  the  district  court 
to  try  titles  to  land  in  Texas  is  exclusive,  we  speak  of  the  whole  class  of 
courts  known  as  district  courts,  and  not  of  any  particular  tribunal  of  that 
class.  There  are  very  few  instances  in  which  any  one  court  of  a  class  is 
given  exclusive  jurisdiction  as  against  the  other  courts  of  that  class. 
The  Supreme  Court  of  Texas,  of  course,  has  exclusive  jurisdiction  in  this 
sense,  because  it  is  the  only  one  of  its  class ;  so  of  the  Court  of  Criminal 
Appeals.  On  the  other  hand,  no  one  Court  of  Civil  Appeals  has  ex- 
clusive jurisdiction  as  compared  with  any  other  Court  of  Civil  Appeals 
within  the  State.  But  it  has  such  jurisdiction  when  compared  with  any 
court  of  another  class  or  kind. 


ORIGINAL   AND   APPELLATE    JURISDICTION.  29 


ORIGINAL  AND  APPELLATE  JURISDICTION. 

Another  general  division  of  jurisdiction  is  into  original  and  appellate, 
The  former  is  the  authority  to  hear  and  determine  cases  in  the  first  in- 
stance and  authoritatively  adjudge  the  issues  between  the  parties  and  to 
enforce  this  judgment ;  the  latter  is  the  power  to  hear  again,  for  the  pur- 
pose of  correcting  errors,  cases  which  have  been  determined  in  an  in- 
ferior court.  Appellate  jurisdiction  is  again  divided  into  jurisdiction  10 
try  de  novo  and  jurisdiction  to  try  upon  the  record  made  in  the  lower 
court.  The  former  of  these  is  practically  a  rehearing  of  the  case  upon  its 
merits  in  another  tribunal,  supposed  to  be  better  qualified  ro  admin- 
ister the  law.  In  such  proceeding  the  same  parties  must  be  before  the 
court,  and  the  case  must  be  presented  again  by  original  pleadings, 
and  by  introduction  of  testimony,  etc.,  just  as  on  the  hearing  in  the  first 
court.  In  the  latter,  the  proceeding  is  strictly  revisory  and  the  trial  in 
the  appellate  court  is  conducted  wholly  upon  the  record  as  made  in  the 
court  below,  which  can  neither  be  taken  from  nor  added  to.  In  the  ab- 
sence of  express  provisions  to  the  contrary,  all  presumptions  in  such  cases 
are  in  favor  of  the  validity  of  the  judgment  appealed  from. 


JURISDICTION  OVER  CASES  ARISING  OUT  OF  THE  STATE. 

There  would  seem  to  be  no  proposition  more  logical  than  that  a  law 
of  a  State  or  nation  can  have  no  force  or  effect  outside  of  the  territory 
of  such  State  or  nation;  and  hence  that  the  courts  of  one  government 
could  not  take  cognizance  of  rights  arising  or  wrongs  committed  within 
another ;  but  here,,  as  often  elsewhere,  the  law  prefers  justice  to  logic, 
and  we  find  that  many  such  rights  are  recognized  and  wrongs  are  re- 
dressed. This  is  done  not  in  obedience  to  any  strict  obligation,  but  as 
matter  of  comity.  Such  jurisdiction  is  never  taken  in  cases  in  which 
it  would  tend  to  disturb  rather  than  to  promote  friendly  relations  be- 
tween the  respective  governments,  nor  in  cases  in  which  the  attempt  to 
settle  the  matter  in  controversy  \vould  be  futile. 

Owing  to  the  difference  in  the  basis  of  legal  right  and  duty  in  contract 
and  noncontract  law,  different  rules  are  applied  in  cases  arising  upon 
the  violation  of  these  rights  respectively.  As  contract  obligations  grow 
out  of  voluntary  'acts  of  the  parties  upon  whom  they  rest,  they  are  almost 
universally*  regarded  as  personal  and  enforceable  against  the  obligor 
wherever  he  may  be  found.  There  is,  however,  one  seeming  exception 
which  is  made  in  cases  of  covenants  running  with  land1;.  These  are 
regarded  as  appertaining  to  the  land  rather  than  the  owner,  and  hence, 
though  they  may  be  binding  upon  a  nonresident  of  the  government  in 


.  30  JURISDICTION. 

which  the  land  is  located  because  of  his  ownership  of  the  land  with  which 
the  covenant  runs,  still  the  action  upon  the  covenant  is  regarded  as  local, 
and  it  can  only  be  brought  in  the  State  or  nation  in  which  the  land 
lies.  This  exception  is,  however,  confined  to  cases  of  covenants  technically 
running  with  the  land,  hence  contracts  regarding  land,  or  the  consid- 
eration of  which  was  the  sale  of  real  estate,  or  which  are  incident  or  per- 
tain to  land,  do  not  come  within  it  unless  falling  within  the  above  class. 
Whether  a  suit  for  tort  can  be  maintained  in  the  courts  of  a  govern- 
ment beyond  whose  territory  the  wrong  was  committed,  is  made  to  de- 
pend on  the  nature  of  the  particular  case.  Such  jurisdiction  is  never 
entertained  over  local  actions.  It  will  or  will  not  be  entertained  over 
transitory  actions,  according  to  circumstances.  The  definition  of  these 
actions  given  by  Judge  Cooley  is  as  follows:  "If  the  cause  of  action 
be  one  that  might  have  arisen  anywhere,  then  it  is  transitory.  If  it  could 
only  have  arisen  in  one  place,  then  it  is  local.  As  for  example,  an 
action  of  trespass  to  the  person  or  for  conversion  of  goods  is  transitory. 
But  an  action  for  flooding  particular  lands  is  local,  because  the  land 
co^ld  only  be  flooded  where  it  is  situated.  For  the  most  part  the  local 
actions  consist  of  those  instituted  for  the  recovery  of  real  estate  or  for 
injuries  thereto  or  for  easements."11  This  definition  has  been  adopted 
by  our  Supreme  Court.12  When  the  property  injured  is  real  estate  and 
is  situated  in  the  same  government  in  which  the  wrong  is  committed  it  is 
an  almost  universal  rule  that  jurisdiction  will  not  be  taken  of  such  wrongs 
by  the  courts  of  another  State;  but  when  the  land  is  on  or  near  the 
boundary  between  two  States  or  countries,  and  the  wrongful  act  resulting 
in  the  injury  has  been  done  in  one  and  the  land  injured  lies  in  the  other, 
more  perplexing  questions  arise.  This  matter  was  considered  by  the  Su- 
preme Court  in  Armendiaz  v.  Stillman.13  Both  plaintiff  and  defendant 
resided  in  Cameron  County,  Texas.  The  plaintiff  owned  land  just  across 
the  Eio  Grande  in  Mexico.  The  defendant  placed  an  obstruction  in  the 
river  on  the  Texas  side  opposite  the  plaintiff's  land,  thus  throwing  the 
water  onto  the  plaintiff's  land  and  washing  away  considerable  portions 
thereof.  Suit  was  brought  in  the  District  Court  of  Cameron  County, 
Texas,  for  the  damages.  That  court  dismissed  the  case  for  lack  of  jur- 
isdiction. The  Supreme  Court  in  an  extensive  opinion,  citing  numerous 
authorities,  reversed  the  judgment  and  remanded  the  case  with  instruc- 
tions to  the  lower  court  to  proceed  with  the  trial.  The  considerations 
which  led  to  this  judgment  were  apparently  that  since  both  plaintiff  and 
defendant  were  residents  of  Texas,  and  the  wrong  resulting  in  the  injury 
was  committed  wij:hin  the  county  in  which  the  suit  was  brought  by  one 

11  Cooley  on  Torts,  471. 

12  Morris  v.  M.  P.  Ry.  Co.,  78  Texas,  20,  14  S.  W.,  228. 
15  54  Texas,  623. 


JURISDICTION   OVER   CASES   ARISING   OUT   OF   STATE.  31 

citizen  of  Texas  against  another,  if  jurisdiction  were  denied  here,  it 
might  upon  the  same  reasoning  be  denied  in  Mexico,  because  of  the  non- 
residence  of  both  parties  and  the  extraterritorial  locality  of  the  wrongful 
act,  and  thus  the  injured  person  would  be  left  without  remedy. 

In  Willis  v.  Missouri  Pacific  Railway14  the  Supreme  Court  says :  "The 
appellant  therefore  seeks  to  maintain  in  Texas  a  suit  for  injuries  com- 
mitted in  the  Indian  Territory,  where  the  right  to  the  action  is  not  al- 
lowed her  by  the  common  law,  nor  by  the  law  of  the  place  where  the 
cause  of  action:,  if  it  exists,  must  have  arisen,  on  the  ground  that  she  can, 
under  the  laws  of  this  State,  maintain  such  a  suit. 

"The  rules  governing  suits  growing  out  of  torts  committed  in  a  locality 
other  than  the  government  where  the  redress  is  sought  are  these,  as  de- 
ducted from  the  authorities  upon  the  subject :  Where  the  action  is  transi- 
tory and  is  based  on  injuries  recognized  as  such  by  universal  law,  the 
suit  may  be  brought  wherever  the  aggressor  is  found,  irrespective  of  the 
provisions  of  the  local  law,  or  whether  there  be  any  law  at  all  in  force  at 
the  place  where  the  wrong  was  committed.  Rorer  on  Interstate  Law,  pp. 
154,  155. 

"But  where  the  right  of  action  does  not  exist  except  by  reason  of 
statute,  it  can  be  enforced  only  in  the  State  where  the  statute  is  in  exist- 
ence and  where  the  injury  has  occurred.  That  is  to  say,  the  cause  of  action 
must  have  arisen  and  the  remedy  must  be  pursued  in  the  same  State, 
and  that  must  be  the  State  where  the  law  was  enacted  and  has  effect. 

"The  principle  upon  which  the  doctrine  rests  is  the  want  of  power  in  a 
State  to  give  her  laws  an  extraterritorial  effect.  Our  State,  in  providing 
that  the  negligent  killing  of  an  individual  shall  constitute  a  cause  of 
action  in  certain  of  his  survivors  for  damages  against  the  party  com- 
mitting the  homicide,  is  providing  only  for  cases  occurring  within  her 
own  borders.  She  makes  that  an  actionable  tort  which  was  not  so  before  at 
common  law.  Within  her  own  jurisdiction  the  law  is  changed  by  reason 
of  this  statute,  but.it  remains  the  same  everywhere  else;  and  the  death  of 
a  husband  through  negligence  of  a  railroad  company,  if  the  injury  oc- 
curred in  the  Indian  Territory,  was  no  more  a  cause  of  action  after  the 
passage  of  our  statute  than  it  was  before. 

"The  government  exercising  authority  in  the  locality  where  this  act 
was  committed  is  the  only  one  to  determine  and  provide  whether  or 
not  such  an  act  shall  be  good  ground  for  suit  in  behalf  of  any  one,  and  to 
name  the  parties  in  whom  the  cause  of  action  shall  exist.  It  is  not  the 
mere  giving  a  remedy  for  a  right  previously  possessed,  but  it  is  the 
creation  of  a  right  itself  in  certain  parties  which  before  belonged  to  no 
one  whatever.  Hence  it  is  held  in  all  States  having  statutes  like  our 
own,  that  the  parties  named  in  the  domestic  statute  can  not  sue  in  the 

14  61  Texas,  433    (1884). 


32  JURISDICTION. 

State  where  it  was  enacted  for  damages  caused  by  a  negligent  killing 
which  has  occured  in  another." 

In  Eailway  Company  v.  Eichards15  the  Supreme  Court  used  this 
language :  "The  sole  right  the  appellee  has  to  enforce  the  cause  of  action 
which  accrued  to  her  father  is  based  on  the  statute  of  Louisiana.  That 
statute  confers  a  right  which  before  its  passage  did  not  exist  even  in 
that  State,  as  may  be  seen  by  an  examination  of  the  cases  to  which  we 
have  referred. 

"As  that  statute  can  not  be  operative  here,  can  the  right  which  it  gives 
bq  enforced  in  this  State? 

"There  are  three  classes  of  cases  in  which  the  question  may  arise  as 
to  whether  a  right  given  solely  by  the  statutes  of  one  State  will  be  en- 
forced in  the  courts  of  another. 

"1.  Cases  in  which  the  right  given  by  the  statutes  of  one  State  is 
sought  to  be  enforced  in  the  courts  of  another,  in  which  laws  exist 
giving  a  like  right  under  the  same  facts ;  and  in  this  class  of  cases,  while 
there  is  some  conflict  of  decision,  it  seems  to  be  generally  held  that  courts 
of  the  latter  State  will  recognize  and  enforce  the  right  given  by  the 
statutes  of  another  State.  Dennick  v.  Railroad  Co.,  103  U.  S.,  17;  Boyce 
v.  Railroad  Co.,  63  Iowa,  72 ;  Leonard  v.  Navigation  Co.,  84  N.  Y.,  48. 

"The  facts  of  the  case  before  us  do  not  bring  it  within  this  rule,  and 
it  becomes  unnecessary  to  consider  what,  if  any,  qualifications  are  sought 
to  be  made  to  it. 

"2.  When  facts  transpire  in  a  State  whose  laws  give  no  right  of  action 
upon  them,  and  an  action  based  upon  these  facts  is  brought  in  another 
State  under  whose  laws  a  right  of  action  would  exist  had  the  facts 
transpired  within  its  jurisdiction.  In  this  class  of  cases  it  is  held  that 
no  action  can  be  maintained.  Within  this  class  fall  the  following  cases : 
Willis  v.  Railroad  Co.,  61  Texas,  432;  Whitford  v.  Railroad  Co.,  23 
N.  Y.,  465 ;  Needham  v.  Railroad  Co.,  45  Maryland,  41 ;  Le  Forrest  v. 
Tolman,  117  Mass.,  109. 

"3.  Cases  in  which  a  right  of  action  given  by  the  statutes  of  one 
State  is  sought  to  be  enforced  in  a  State  whose  laws  deny  the  righi 
given  by  the  statutes  of  another;  and  in  this  class  of  cases  it  would 
seem  necessarily  to  follow  that  the  court  of  the  State  in  which  the 
action  is  brought  would  be  compelled  to  follow  the  law  of  the  State  in 
which  it  sits,  whose  laws  only  has  it  the  power  to  enforce.  This  would 
seem  to  be  true,  whether  the  law  of  such  State  affected  the  right  or  only 
the  remedy." 

These  cases  are  supported  by  the  weight  of  authority.  The  distinctions 
between  statutory  laws  and  laws  spoken  of  as  "universal,"  unless  this 

15  68  Texas,  375,  4  S.  W.,  627. 


TIME   AND   PLACE.  33 

term  be  limited  to  those  general  principles  which  make  up  private  inter- 
national law,  does  not  seem  to  be  based  on  good  reason  or  principle.16 


TIME  AND  PLACE. 

A  court  can  not  exercise  its  jurisdiction  at  a  time  or  place  not  au- 
thorized by  law.17 

"Other  Texas  cases  bearing  on  the  subject  are:  Railway  Co.  v.  McCormick, 
71  Texas,  660,  9  S.  W.,  540  (1888)  ;  Morris  v.  Railway  Co.,  78  Texas,  17,  14  S.  W., 
228  (1890)  ;  Railway  Co.  v.  Cullers,  81  Texas,  382,  17  S.  W.,  19  (1891)  ;  Railway 
Co.  v.  Jackson,  89  Texas,  107,  33  S.  W.,  851;  W.  U.  Tel.  Co.  v.  Phillips,  30  S.  W., 
494  (1893)  ;  S.  P.  Co.  v.  Graham,  34  S.  W.,  135  (1896)  ;  Railway  Co.  v.  Mitten,  36 
S.  W.,  282  (1896)  ;  W.  U.  Tel  Co.  v.  Clark,  38  S.  W.,  225  (1896). 

"Doss  v.  Waggoner,  3  Texas,  515;  Whitener  v.  Belknap,  89  Texas,  281,  34  S. 
W.,  594  (1896)  ;  Wilson  v.  State,  37  Texas  Crim.  App.,  373,  35  S.  W.,  390  (1896)  ; 
Williams  v.  Ruetzel,  29  S.  W.,  374  (Ark.,  1895). 


3— Pleading 


34  PROCEEDINGS   IN    PERSONAM,    IN   REM,   AND    QUASI   IN   REM. 

CHAPTER  HI. 

PROCEEDINGS  IN  PERSONAM,  IN  REM,  AND  QUASI  IN  REM. 

We  will  next  consider  the  three  general  classes  of  proceedings  which 
may  be  conducted  in  the  courts.  These  are  known,  respectively,  as  pro- 
ceedings in  personam.,  proceedings  in  rem  and  proceedings  quasi  in  rem. 

DEFINITIONS  OF  THESE  TERMS. 

A  proceeding  in  personam  is  one  instituted  for  the  purpose  of  ad- 
judicating some  personal  obligation  between  the  parties  to  the  suit. 

A  proceeding  in  rem  is  one  instituted  with  reference  to  a  particular 
thing  or  status  for  the  purpose  of  binding  said  thing  or  determining  said 
status  by  an  adjudication  operative  against  all  parties  whether  named 
in  the  proceeding  or  not. 

A  proceeding  quasi  in  rem  partakes  somewhat  of  the  nature  of  each  of 
the  preceding.  It  resembles  the  first  in  that  it  only  operates  against 
those  persons  named  in  the  proceeding,  and  upon  whom  some  sort  of 
process  is  served;  it  resembles  the  second  in  that  it  specificially  deals 
with  and  binds  a  certain  thing  or  things.  It  differs  from  the  first  in 
that  it  binds  the  parties  named  only  so  far  as  they  are  interested  in  the 
particular  thing  or  things  within  the  jurisdiction  of  the  court,  and  from 
the  second  in  that  it  binds  the  thing  or  things  only  so  far  as  the  per- 
sons named  as  parties  are  concerned. 

PROCEEDINGS  IN  PERSONAM. 

The  proceeding  in  personam  is  the  most  common  form  of  litigation. 
It  embraces  all  those  suits  in  which  personal  rights  and  duties  are  directly 
involved  and  sought  to  be  conclusively  adjudicated.  It  is  essential  in 
such  a  proceeding  that  the  court  should  have  both  potential  and  active 
jurisdiction  over  both  the  subject  matter  and  parties.  This  potential 
jurisdiction  is  conferred  by  the  sovereign;  the  active  jurisdiction  is  ac- 
quired over  the  subject  matter  by  the  presentation  of  the  issues  to  the 
court  by  the  respective  parties,  and  over  the  parties  either  by  voluntary 
appearance,  as  is  always  the  case  with  the  plaintiff,  and  not  infre- 
quently with  the  defendant,  or  by  compulsion,  through  the  issuance  of 
service  or  of  legal  notice  in  the  form  required  by  the  law  or  rules  of  the 


PROCEEDINGS    IN    PERSONAM.  35 

court.  By  subject  matter  here  is  meant  the  respective  rights  and  duties 
of  the  parties,  the  alleged  violations  thereof,  and  the  remedies  sought. 
This  must  be  distinguished  from  the  thing  or  things  in  which,  or 
with  reference  to  which,  these  rights  and  duties  exist,  or  out  of  which 
they  may  have  grown.  If  the  latter  is  brought  before  the  court,  or 
taken  into  the  custody  of  the  law,  the  proceeding  becomes  to  that  extent 
one  in  rem  or  quasi  in  rem. 

In  those  instances  in  which  all  parties  to  the  suit  voluntarily  appear, 
no  questions  as  to  the  validity  of  process  or  the  jurisdiction  of  the  court 
acquired  by  compulsion  arise ;  but  a  great  many  most  interesting  questions 
are  presented  with  reference  to  the  effect  of  service  and  the  powers  of  the 
oourt  over  involuntary  parties. 

The  rules  governing  these  differ  widely  according  to  residence,  persons 
living  within  the  State  which  authorizes  the  service  being  almost  unre- 
servedly within  its  power,  and  those  without  almost  entirely  beyond  it. 


Service  Upon  Residents 

Many  of  the  authorities  use  extremely  broad  expressions  as  to  the 
power  of  the  State  regarding  methods  of  obtaining  compulsory,  active 
jurisdiction  over  its  own  citizens  in  its  own  courts.  It  seems  that  the 
only  restrictions  on  such  power  are  those  included  in  the  extremely 
indefinite  yet  comprehensive  term  "due  process  of  law/'  and  that  any 
method  will  be  sustained  which  affords  the  party  fair  opportunity  to  ap- 
pear and  defend  his  interests.1  The  method  usually  adopted  is  the 
issuance  of  some  writ  or  process,  by  the  clerk  or  proper  officer  of  the 
court,  running  in  the  name  of  the  sovereign,  and  directed  to  some  execu- 
tive officer,  requiring  him  to  notify  the  party  of  the  pendency  of  the 
suit  and  the  time  and  place  of  its  hearing,  and  to  admonish  him  to  appear 
and  defend.  Another  method  is  by  publication  in  a  newspaper.  Another 
is  by  issuing  process  and  having  it  served  by  some  unofficial  person  who 
is  required  to  make  return  under  oath.  Any  one  of  these  forms  is  suf- 
ficient where  the  party  sought  to  be  served  is  a  resident  citizen  of  the 
State  in  which  the  proceeding  is  had.2 

1  McMullen  v.  Guest,  6  Texas,  275;  Campbell  v.  Wilson,  6  Texas,  379;  Thouvenin 
v.  Rodriguez,  24  Texas.  468;  Long  v.  Brenneman,  59  Texas,  i212;  Northcraft  v. 
Oliver,  74  Texas,  162,  11  S.  W.,  1121;  Martin  v.  Burns,  80  Texas,  679,  16  S.  W., 
1072;   Gunter  v.  Armstrong,  2  C.  C.  A.,  601;   Pennoyer  v.  Neff,  95  U.  S.,  714; 
1072 ;  Gunter  v.  Armstrong,  2  Texas  Civ.  App.,  601 ;  Pennoyer  v.  Neff,  95  U.  S., 
714;  Arndt  v.  Griggs,  134  U.  S.,  316;  Dillen  v.  Hiller,  39  Kan.,  599. 

2  Rev.  Stats.  1895,  title  30,  chap.  6. 


36  PROCEEDINGS   IN   PERSONAM,    IN   REM,   AND    QUASI   IN   REM. 

Service  Upon  Nonresidents. 

However  powerful  a  State  may  be  within  its  own  territory,  it  has  no 
authority  or  power  beyond  its  own  borders.  It  can  not  send  process  into 
another  State  or  country  and  acquire  jurisdiction  for  its  courts  over 
persons  served  there.  Whether  the  effort  be  made  by  sending  its  process 
to  some  person  outside  of  the  State,  authorizing  him  to  serve  and  return 
it,  or  by  publishing  notice  in  a  newspaper  within  the  State  where  the 
suit  is  pending,  or  within  the  State  where  the  defendant  resides,  or  in 
which  he  may  be  found,  the  result  is  the  same. 

A  court  is  without  power  to  adjudicate  the  personal  obligations  of 
a  nonresident,  unless  he  is  served  with  process  within  the  limits  of  the 
State  in  which  the  court  is  held,  or  voluntarily  submits  himself  to  its  jur- 
isdiction. Hence  until  one  or  the  other  of  these  conditions  exists,  it  can 
not  render  any  personal  judgment  for  or  against  him. 

For  many  years  this  was  not  the  theory  of  the  Texas  law  nor  the  doc- 
trine of  our  courts.  Early  in  the  history  of  the  State  statutes  providing 
for  extraterritorial  service  were  passed,3  and  personal  judgments  based 
upon  such  service  were  for  many  years  upheld.*  The  case  of  Pennoyer  v. 
Neff,4a  decided  by  the  Supreme  Court  of  the  United  States,  at  the 
October  term.  1877,  denied  this  doctrine,  but  it  was  not  followed  by 
our  State  Supreme  Court  for  many  years;  the  case  of  Hockstadler  v. 
Sam,4b  rendered  in  1889,  probably  being  the  first  direct  recognition 
of  the  principles  asserted  therein.  Since  that  time,  however,  the 
holding  has  been  uniform  against  the  validity  of  such  service  as  a  basis 
for  personal  judgment.5 

3  Texas  Statutes:  Laws  of  Coahuila  and  Texas,  p.  265  (Act  April  17,  1834)  ; 
Act  of  May  13,  1846,  Hartley's  Digest,  art/676;  Act  of  March  16,  1848,  Hartley's 
Digest,  art.  813;  Rev.  Stats.  1879,  art.  1230;  Rev.  Stats.  1895,  art.  1230. 

*  Texas  cases  before  following  Pennoyer  v.  Neff:  Grossmeyer  v.  Beeson,  13 
Texas,  528;  Kitchen  v.  Crawford,  13  Texas  520;  Lawler  v.  White,  27  Texas,  250; 
Wilson  v.  Zeigler,  44  Texas,  657;  O'Neill  v.  Brown,  61  Texas,  34;  Rice,  Stix  &  Co., 
v.  Peteet,  (56  Texas,  568,  1  S.  W.,  657 ;  Davis  v.  Robinson,  70  Texas,  396,  7  S.  W., 
749. 

«*95U.  S.,  714. 
4b  73  Texas,  315. 

5 Texas  cases  following  Pennoyer  v.  Neff:  Hochstadler  v.  Sam,  73  Texas,  315, 
11  'S.  W.,  408;  York  v.  State,  73  Texas,  651,  11  S.  W.,  869;  Sugg  v.  Thornton,  73 
Texas,  547,  11  S.  W.,  532;  Harris  v.  Daugherty,  74  Texas,  1,  11  S.  W.,  921; 
Northcraft  v.  Oliver,  74  Texas,  162,  11  S.  W.,  1121;  Byrnes  v.  Sampson,  74  Texas, 
79,  11  S.  W.,  1073;  Taliaferro  v.  Carter,  74  Texas,  637,  12  S.  W.,  750;  Masterson  v. 
Little,  75  Texas,  082,  13  S.  W.,  154;  Kimmarle  &  Hirsch  v.  Railway  Co.,  76  Texas, 
686,  12  S.  W.,  698;  Sam  v.  Hochstadler  Bros.,  76  Texas,  162,  13  S".  W.,  535;  Fer- 
nandez v.  Casey  &  Swasey,  77  Texas,  452,  14  S.  W.,  149;  Martin  v.  Cobb,  77 
Texas,  544,  14  S.  W.,  162;  Railway  Co.  v.  Whitley,  77  Texas,  126,  13  S.  W.,  853; 
Taliaferro  v.  Butler,  77  Texas,  578,  14  S.  W.,  191;  Franz  Falk  Brewing  Co.  v. 


PROCEEDINGS   IN   REM.  37 


PROCEEDINGS  IN  REM. 

A  proceeding  strictly  in  rem  is  one  which  deals  directly  with  the  status 
of  some  thing  or  person,  and  in  which  the  judgment  rendered  is  self 
operative,  not  requiring  any  aid  from  or  action  by  any  other  agency  or 
person  to  make  it  effectual. 

We  find  an  illustration  of  this  in  proceedings  regarding  title  to  real 
estate.  Any  suit  in  which  the  court  is  authorized  to  deal  immediately 
with  the  land  and  by  its  judgment  and  process  operating  directly  upon 
it  or  upon^the  title  to  it,  to  give  to  the  plaintiff  the  specific  relief  which 
he  seeks  as  to  the  land  or  his  right  in  it  would  be  a  proceeding  in  rem  or 
quasi  in  rem;  but  a  suit  in  which  such  direct  dealing  with  the  land  or 
title  by  the  court  was  unauthorized,  and  in  which  the  remedy  provided 
could  be  made  effectual  only  by  some  action  of  the  court  upon  the  de- 
fendant personally  would  be  a  proceeding  in  personam. 

Under  the  chancery  practice,  in  an  action  to  remove  cloud  the  court 
has  no  power  to  render  a  judgment  directly  divesting  the  defendant  of 
the  title  or  claim  of  title;  but  it  determines  that  such  divestiture  ought 
to  be  made  and  then  compels  the  defendant  under  severe  personal  penal- 
ties to  make  a  conveyance  to  the  plaintiff.  This  is  a  proceeding  in  per- 
sonam. Under  our  statutes  this  circuitous  method  is  abolished  and  the 
court  is  empowered  to  render  judgment  directly  divesting  the  defendant 
of  the  title  and  vesting  it  in  the  plaintiff.  Since  no  process  against  the 
defendant  and  no  act  by  him  is  involved  in  such  divestiture,  a  suit  to  re- 
move cloud  is  with  us  a  proceeding  quasi  in  rem.  The  power  of  direct 
action  and  immediate  change  in  the  status  of  the  thing  or  person  must 
exist  in  the  court  in  every  proceeding  in  rem  or  quasi  in  rem;  and  in 
these  cases  of  direct  action,  the  adjudication  is  binding  on  all  persons 
who  in  legal  contemplation  are  parties  thereto.  In  proceedings  strictly 
in  rem  all  persons  are  regarded  as  parties.  All  persons  interested  are 
notified  in  the  manner  prescribed  by  the  rules  of  the  court, — usually  by 
posting  notices  and  publishing  them  in  a  newspaper;  and  as  everyone 
conceiving  himself  to  have  an  interest  in  the  proceedings  can,  upon  being 
thus  notified,  come  into  the  suit,  everyone  is  held  to  be  bound  by  it. 


Admiralty  Suits. 

Proceedings  in  admiralty  are  perhaps  the  most  typical  actions  in  rem. 
Here  the  proceeding  is  against  the  vessel.    The  court  deals  with  it  and 

Hirsch,  78  Texas,  192,  14  S.  W.,  450;  Martin  v.  Burns,  Walker  &  Co.,  80  Texas, 
676,  16  S.  W.,  1072;  Maddox  v.  Craig,  80  Texas,  600,  16  S.  W.,  328;  Hardy  v. 
Beaty,  84  Texas,  562,  19  S.  W.,  778 ;  Hambel  v.  Davis,  89  Texas,  256,  34  S.  W.,  439. 

17C281 


38  PROCEEDINGS    IN    PERSONAM,    IN   REM,    AND    QUASI    IN    REM. 

with  it  only.  The  claims  of  different  parties  are  made  not  as  against 
each  other,  but  as  against  the  vessel.  If  there  is  a  discharge,  it  is  the 
vessel  that  is -discharged;  if  there  is  a  condemnation,  it  is  the  vessel 
that  is  condemned;  and  upon  sale  the  title  of  the  purchaser  becomes 
absolute  against  all  the  world,  and  the  proceeds  are  distributed  among 
those  adjudged  by  the  court  to  be  entitled  to  them.6 


Revenue  Suits. 

Eevenue  cases  furnish  another  illustration  in  the  seizure  of  chattels 
for  revenue  due  upon  them.  Here  no  personal  obligations  are  adjudged, 
and  the  property  itself  is  regarded  as  indebted  to  the  government,  and 
is  sold  in  satisfaction  of  the  debt.  The  amount  due  the  government  is 
retained,  and  the  remainder  disposed  of  as  provided  by  law.7 


Probate  Proceedings. 

In  some  regards  the  action  of  a  probate  court  in  admitting  or  rejecting 
a  paper  propounded  as  a  will  is  a  proceeding  in  rem.  So  far  as  the  court 
deals  strictly  with  the  genuineness  of  the  paper  and  its  legality  as  a  will, 
its  action  is  in  rem  and  binding  on  all  parties;  but  in  other  regards, 
that  is,  as  to  construction  of  the  will  and  the  rights  and  liabilities  of 
the  parties  thereunder,  and  as  to  the  death  of  the  testator,  etc.,  it  is 
not  in  rem,  and  is  not  conclusive  and,  in  some  instances,  not  even  ad- 
missible as  evidence  touching  the  questions.8 


Divorce  Cases. 

Every  government  owes  to  each  of  its  citizens  and  bona  fide  in- 
habitants the  duty  to  determine  for  him  definitely  his  condition  in  every 
important  personal,  social,  and  political  relation.  Acting  upon  this  obli- 
gation, most  of  the  States  have  undertaken  to  grant  divorces  and  regulate 
proceedings  with  reference  thereto.  In  most  jurisdictions  such  proceed- 
ings so  far  as  they  affect  the  personal  status  of  the  parties  are  held  to 
be  strictly  proceedings  in  rem,  and  binding  on  all  persons.  So  far  as 
they  undertake  to  determine  property  rights  or  to  adjudicate  any  matter, 

"Overhill  v.  Smith,  17  Wall.,  95;  The  Propeller  Commerce,  1  Black  (U.  S.), 
580;  Penhallow  v.  Doane,  3  Ball.,  54. 

7  2  Black  on  Judgments,  sec.  799. 

"Steele  v.  Renn,  50  Texas,  479;  32  Am.  Rep.,  605;  Brown  v.  Brown,  2  Pick. 
(Tenn.),  277,  7  S.  W.,  643;  Robertson  v.  Pickrell,  109  U.  S.,  608,  3  S.  C.,  407; 
2  Black  on  Judgments,  sees.  635,  808. 


PROCEEDINGS    QUASI    IN   REM.  39 

except  the  status  of  the  parties,  the  proceedings  would  either  be  in  per- 
sonam  or  quasi  in  rem  according  to  the  circumstances,  and  must  con- 
form to  the  rules  prescribed  for  such  actions.  It  is  universally  agreed 
that  if  both  parties  are  citizens  of  the  government,  or  bona  fide  in- 
habitants thereof  for  the  required  time,  that  jurisdiction  exists;  and 
with  almost  equal  unanimity  it  is  held  that  if  neither  is  a  citizen  or  such 
an  inhabitant  that  there  is  no  jurisdiction;  but  there  are  differences  of 
opinion,  and  irreconcilable  conflicts  in  the  authorities  as  to  the  juris- 
diction to  grant  divorces  when  the  parties  to  the  suit  reside  in  different 
States.  It  is  held  by  the  Supreme  Court  of  the  United  States,  and 
settled  in  the  State  of  Texas,  that  if  the  plaintiff  has  been  for  the  time 
specified  by  the  statute — one  year  in  Texas — a  bona  fide  resident  of  the 
State,  the  court  has  jurisdiction  to  determine  his  status  and  to  grant 
or  withhold  the  divorce,  as  the  law  and  facts  may  demand,  and  that  its 
judgment  is  binding  upon  all  persons,  notwithstanding  the  facts  that 
the  other  party  may  be  a  nonresident  of  the  State  and  has  only  been 
served  by  publication,  or  by  some  other  form  of  constructive  service.9 
This  obligation  does  not  extend  to  nonresidents,  and  an  attempt  by  any 
such  person  to  have  his  status  adjudicated  is  a  fraud  upon  the  court, 
and  such  judgments  are  not  valid.10 


Proceedings  Affecting  Citizenship. 

Naturalization  proceedings  are  also  regarded  as  strictly  in  rem. 

These  will  serve  as  illustrations  of  the  proceedings  in  rem.,  the  first 
two  dealing  with  material  things,  the  third  with  the  genuineness  and 
legal  status  of  a  particular  instrument,  and  the  fourth  and  fifth  with 
the  status  of  bona  fide  inhabitants. 


PROCEEDINGS  QUASI  IN  REM. 

In  a  proceeding  in  personam,  the  court  has  complete  active  jurisdic- 
tion over  both  the  subject  matter  and  the  persons,  but  has  not  custody 
of  the  thing.  In  a  proceeding  in  rem  the  court  has  legal  custody  of, 
and  complete  jurisdiction  over,  the  thing,  but  not  over  the  persons. 
In  a  proceeding  quasi  in  rem  the  court  has  not  complete  jurisdiction  over 
either  the  thing  or  the  persons.  It  takes  the  thing  into  his  custody  or 
possession,  and  deals  with  it  only  so  far  as  the  interests  of  the  parties 

•Hare  v.  Hare,  5  Texas,  355;  Trevino  v.  Trevino,  54  Texas,  261;  Shreck  v. 
Shreck,  32  Texas,  578;  Jones  v.  Jones,  60  Texas,  451;  Stephens  v.  Stephens,  62 
Texas,  337. 

10  Gould  v.  Crow,  57  Mo.,  200. 


40  PROCEEDINGS   IN   PERSONAM,   IN   REM,   AND   QUASI   IN   REM. 

named  and  proceeded  against  in  the  action  may  be  found  to  extend; 
and  it  deals  with  the  parties  only  as  to  their  interest  or  claim  in  that  par- 
ticular thing.  A  sale  of  the  thing  in  a  proceeding  of  this  sort  would  not 
carry  with  it  absolute  title,  but  the  title  of  the  parties  to  that  suit, 
and  upon  a  sale  of  the  thing  and  an  extinguishment  thereby  of  the  par- 
ties' right  in  it,  the  court  exhausts  its  jurisdiction  over  the  parties, — 
that  is,  the  court  neither  renders  a  general  judgment  of  condemnation 
against  the  thing,  binding  on  everybody,  nor  a  personal  judgment 
against  the  party,  binding  upon  him,  or  upon  anything  belonging  to 
him,  except  the  res  before  the  court.11 


Custody  of  the  Thing. 

In  these  proceedings  it  is  necessary  that  the  court  should  have  the 
legal  custody  of  the  thing.  This  does  not  always  involve  actual  seizure 
or  possession,  but  the  thing  must  in  every  case  be  brought  into  such 
relation  to  the  court  that  its  judgment  may  act  directly  on  it  and  bind  it. 
On  this  the  authorities  since  the  decision  of  Pennoyer  v.  Neff,  95  U.  S., 
714,  all  agree. 


Service. 

Eegularity  of  proceeding  requires  also  that  some  form  of  service 
upon  the  defendant  be  obtained.  On  this  subject  the  authorities  are 
not  uniform.  The  Supreme  Court  of  the  United  States  December  Term, 
1870,  in  Cooper  v.  Reynolds,12  in  a  very  strong  opinion  by  Judge 
Miller  says:  "Now  in  this  class  of  cases  [suit  on  personal  ob- 
ligation with  attachment  on  land,  in  which  the  preliminary  proceedings 
in  attachment  were  defective,  and  no  attempt  at  personal  service  of  any 
sort  was  made]  on  what  does  the  jurisdiction  of  the  court  depend?  It 
seems  to  us  that  the  seizure  of  the  property,  or  that  which,  in  this  case, 
is  the  same  in  effect,  the  levy  of  the  writ  of  attachment  on  it,  is  the  one 
essential  requisite  to  jurisdiction,  as  it  unquestionably  is  in  proceedings 
purely  in  rem.  Without  this  the  court  can  proceed  no  further;  with 
it  the  court  can  proceed  to  subject  that  property  to  the  demand  of  plain- 
tiff. If  the  writ  of  attachment  is  the  lawful  writ  of  the  court,  issued 
in  proper  form  under  the  seal  of  the  court,  and  it  is  by  the  proper  offi- 
cer levied  upon  property  liable  to  the  attachment,  when  such  a  writ  is 
returned  into  court,  the  power  of  the  res  is  established.  The  affidavit 

11  Texas  cases  cited  supra:  Pennoyer  v.  Neff,  95  U.  S.,  (i<±;  freeman  v.  Alder- 
son,  119  U.  S.,  187. 

"  10  Wall.,  315. 


PROCEEDINGS   QUASI   IN   EEM.  41 

is  the  preliminary  to  issuing  the  writ.  It  may  be  a  defective  affidavit, 
or  possibly  the  officer  whose  duty  it  is  to  issue  the  writ  may  have  failed 
in  some  manner  to  observe  all  the  requisite  formalities;  but  the  writ 
being  issued  and  levied,  the  affidavit  has  served  its  purpose,  and,  though 
a  revisory  court  migbj;  see  in  some  such  departure  from  the  strict  di- 
rection of  the  statute  sufficient  error  to  reverse  the  judgment,  we  are 
unable  to  see  how  that  can  deprive  the  court  of  the  jurisdiction  acquired 
by  the  writ  levied  upon  the  defendant's  property. 

"So  also  of  the  publication  of  notice.  It  is  the  duty  of  the  court  to 
order  such  publication,  and  to  see  that  it  has  been  properly  made;  un- 
doubtedly, if  there  has  been  no  such  publication,  a  court  of  errors  might 
reverse  the  judgment. 

"But  when  the  writ  has  been  issued,  the  property  seized,  and  that 
property  been  condemned  and  sold,  we  can  not  hold  that  the  court  had 
no  jurisdiction  for  want  of  a  sufficient  publication  of  notice. 

"We  do  not  deny  that  there  are  cases  which,  not  partaking  of  the 
nature  of  proceedings  in  rem,  when  the  judgment  is  to  have  an  effect 
on  personal  rights,  as  in  divorce  suits,  or  in  proceedings  to  compel  con- 
veyance, or  other  personal  acts,  in  which  the  Legislature  has  properly 
made  the  jurisdiction  depend  on  this  publication  of  notice,  or  on  bring- 
ing the  suit  to  the  notice  of  the  party  in  some  other  mode,  when  he  is 
not  within  the  territorial  jurisdiction." 

The  rule  of  Texas  on  this  subject  is  very  clearly  announced  by  the 
Supreme  Court  of  Texas  in  Stewart  v.  Anderson.12a  Speaking  for  the 
court,  Judge  Stayton  says:  "The  laws  of  this  State  do  not  deem  the 
seizure  of  property  under  a  writ  of  attachment  notice,  for  it  requires  per- 
sonal service  or  notice  by  publication. 

"It  is  doubtless  competent  for  the  Legislature  when  personal  service 
can  not  be  made  within  the  State  of  a  defendant,  to  declare  what  shall 
constitute  notice  to  a  nonresident  debtor  having  property  within  the 
limits  of  the  State  sought  to  be  subjected  by  a  creditor  to  the  payment 
of  his  debt.  When,  however,  the  manner  in  which  notice  shall  be  given 
in  such  cases  is  thus  prescribed,  and  the  Legislature  has  declared  'that 
no  judgment  shall  be  rendered  in  suits  by  attachment,  unless  the  citation 
or  summons  has  been  served  in  the  ordinary  mode,  or  by  publication  in 
the  manner  prescribed  for  by  law/  we  can  not  hold  that  the  giving  of 
notice  is  not  necessary  to  clothe  a  court  with  power  to  hear  and  de- 
termine the  pending  cause,  if  there  be  no  appearance;  and  without  this 
no  court  has  the  power  to  render  a  decree  or  judgment  whereby  a 
debtor's  property  may  be  sold  and  the  proceeds  applied  to  the  creditor's 
demand,  even  though  the  property  may  be  in  the  custody  of  the  law  un- 
der a  seizure  made  through  a  valid  writ  of  attachment. 

12a  70  Texas,  590,  8  S.  W.  295  (1888). 


42  PROCEEDINGS   IN    PERSONAM,    IN   REM,   AND   QUASI   IN   REM. 

"There  are  cases  holding  to  the  contrary,  and  a  distinguished  ele- 
mentary writer  citing  such  cases  says:  'When,  therefore,  notice  to  the 
defendant  is  required,  it  is  not  an  element  of  the  jurisdiction  of  the 
court,  but  is  necessary  to  authorize  the  court  to  exercise  its  jurisdiction  by 
giving  judgment  in  the  cause/  Drake  on  Attachments,  437. 

"This  is  the  substance  of  the  language  used  in  some  of  the  decisions- 
holding  that  notice  is  not  essential  to  the  jurisdiction  of  a  court  in  at- 
tachment cases,  and  that  while  judgments  rendered  in  such  cases  with- 
out such  notice  are  voidable,  they  are  not  void.  The  word  'jurisdiction^ 
when  used  in  an  inquiry  whether  a  judgment  a  court  has  assumed  the 
power  to  render  is  void  or  voidable  can  have  but  one  meaning,  and 
means  lawful  power  to  hear  and  determine  the  matter  in  controversy. 

"If  having  this  power  a  court  renders  an  erroneous  judgment  it  may 
be  avoided  by  such  proceedings  as  the  law  provides,  but  until  avoided  it 
is  binding  on  the  parties  to  the  action.  If  the  court  have  not  such 
power,  any  judgment  it  may  assume  to  render  is  necessarily  void,  and 
binds  no  person  or  thing. 

"Courts  have  no  powers  other  than  such  as  are  conferred  upon  them 
by  law,  and  the  proposition  that  an  exercise  of  power  which  the  law 
forbids  in  the  absence  of  facts  made  necessary  by  the  law  to  the  exercise 
and  very  existence  of  jurisdiction,  is  only  voidable,  can  have  basis  on  no 
theory  than  that  courts  have  an  inherent  power  to  hear  and  determine 
when  the  law  denies  or  withholds  it.  The  great  difficulty  in  determining 
whether  a  judgment  be  void  or  only  voidable  most  frequently  arises  from 
the  presumptions  indulged  from  the  fact  that  a  court  of  general  juris- 
diction has  assumed  te  exercise  the  power  to  hear  and  determine,  where- 
by inquiry  is  cut  off  except  as  the  facts  on  which  to  make  it  are  found  in 
the  record.  If,  however,  from  the  record,  it  appears  that  a  fact  necessary 
to  confer  on  the  court  power  to  hear  and  determine  a  given  cause  did 
not  exist,  it  is  universally  held  that  its  judgment  is  void. 

"Every  fact  which  the  law  declares  shall  exist  before  a  court  can 
lawfully  hear  and  determine  a  cause,  is  necessarily  a  jurisdictional  fact — 
an  element  of  jurisdiction  in  the  particular  case.    A  denial  of  the  power 
to  render  a  judgment  is  necessarily  a  denial  of  the  power  to  hear  and  de- 
termine. 

"The  exercise  or  assumption  of  a  power,  when  a  fact  necessary  to  its 
existence  is  wanting,  is  usurpation. 

"In  an  attachment  suit  the  debtor's  property  is  seized  and  thus 
brought  into  custody  of  the  law,  but  if  the  debtor  be  within  the  reach 
of  the  ordinary  process  of  the  court,  the  law  declares  that  he  shall  be 
brought  into  court,  by  service  of  such  process,  before  a  judgment  can  be 
rendered  against  him,  or  to  subject  his  property  to  sale  and  its  proceeds 
to  the  payment  of  his  debt.  If  the  record  in  such  a  case  shows  that  there 
was  neither  service  on  such  a  defendant  nor  appearance  by  him,  It  would 
not  be  claimed  that  the  judgment  was  not  void,  even  though  it  did  noth- 


PROCEEDINGS    QUASI   IN   HEM.  43 

ing  more  than  to  subject  the  attached  property  to  its  payment.  In  such 
a  case  it  would  be  admitted  that  an  element  of  jurisdiction  prescribed  by 
a  positive  law  was  wanting. 

"What  shall  be  an  element  of  jurisdiction,  except  as  this  may  be  con- 
trolled by  constitutional  safeguards,  is  to  be  determined  by  the  Legisla- 
ture. 

"The  same  law  which  makes  personal  service  an-  element  of  jurisdic- 
tion in  attachment  suits,  as  in  all  others,  when  this  can  be  had,  and 
thereby  in  effect  denies  the  sufficiency  of  the  mere  seizure  and  custody 
of  the  debtor's  property  to  confer  on  a  court  the  power  to  hear  and  de- 
termine a  cause,  declares,  if  such  service  can  not  be  had,  that  notice  shall 
be  given  by  publication  before  the  court  can  hear  and  determine  the 
cause. 

"The  latter  is  as  clearly  an  element  of  jurisdiction  as  is  the  former.'7 

There  are  expressions  used  by  the  Court  of  Civil  Appeals  at  Galveston 
in  Barelli  v.  Wagner,12b  which  do  not  at  first  sight  seem  to  correspond 
with  this  extract  from  the  opinion  of  the  Supreme  Court,  but  when  the 
facts  in  that  case  and  the  questions  presented  are  considered,  there  is  no 
real  disagreement. 

The  following  are  among  the  most  common  instances  of  proceedings 
quasi  in  rem. 


Suits  on  Personal  Contracts  Accompanied  by  Seizure  of  Some 
Thing. 

Suits  on  personal  contracts  in  which  process  of  the  court  is  sued  out 
and  levied  upon  the  property  belonging  to  the  defendant,  thus  taking 
the  res  into  the  custody  of  the  law  and  holding  it  subject  to  the  juris- 
diction of  the  court,  are  the  most  common  examples.  In  such  a  case 
the  jurisdiction  of  the  court  attaches  to  the  thing  upon  its  seizure  and 
in  Texas  a  qualified  jurisdiction  must  be  obtained  over  the  defendant 
by  some  kind  of  constructive  service  or  process.  This  may  be  either  by 
publication  or  by  forwarding  notice  outside  of  the  State,  and  having  it 
given  in  conformity  with  the  statutes.13  The  power  of  the  court  in  such 
a  case  extends  only  to  the  hearing  of  the  plaintiff's  case  against  the  de- 
fendant, and  entering  judgment  determining  the  amount  due,  and  or- 
dering a  sale  of  the  property  seized  in  satisfaction  thereof.  This  must 
not  be  confounded  with  personal  judgment  which  may  be  enforced 
against  the  defendant  or  other  property  subject  to  execution  which  he 
may  own.  It  has  no  such  legal  effect ;  the  extent  to  which  it  can  go  is 
to  find,  for  the  purpose  of  the  particular  proceeding,  the  amount  of  the 

12b  5  Texas  Civ.  App.,  499. 

"Harris  v.  Daugherty,  74  Texas,  4,  11  S.  W.,  921. 


44  PROCEEDINGS   IN   PERSONAL,    IN   REM,   AND    QUASI   IN   REM. 

debt  and  to  order  a  sale  of  the  property  then  in  the  custody  of  the  court ; 
if  the  property  brings  more  than  enough  to  satisfy  the  debt  as  ascer- 
tained by  the  court,  the  surplus  must  be  held  for,  and  paid  to,  the  de- 
fendant. If  the  property  in  the  custody  of  the  court  does  not  bring 
enough  to  satisfy  the  amount  found  to  be  due,  no  execution  can  issue  to 
compel  payment  of  the  balance  from  other  property,  for  the  power  of 
the  court  in  the  premises  is  exhausted  by  the  disposition  of  the  prop- 
erty in  its  custody. 

Such  judgment  is  not  evidence  of  debt  against  the  defendant  either 
of  the  whole  amount  before  sale  of  the  attached  property,  or  of  the 
balance  after  such  sale.  In  these  respects  the  suit  differs  from  a  pro- 
ceeding in  personam.  In  the  sale  of  the  property,  only  the  defendant's 
title  therein  would  be  conveyed.  The  interests  of  other  persons  not 
made  parties  to  the  suit  and  not  served  with  process  would  not  be  affected 
thereby.  In  this  respect  it  differs  from  a  proceeding  in  rem.1* 

Defects  in  matters  of  form  in  procuring  the  attachment,  if  not  called 
to  the  attention  of  the  court,  or  even  if  the  court  should  erroneously 
sustain  the  attachment  after  the  defects  were  pointed  out,  and  render 
judgment  foreclosing  the  lien  thereby  acquired,  will  not  effect  the  ju- 
risdiction of  the  court.  It  is  the  actual  attachment  and  judgment  of 
foreclosure  which  give  jurisdiction.15  If,  however,  the  defects  were 
called  to  the  attention  of  the  court  and  the  attachments  quashed  before 
the  rendering  of  the  judgment,  this  ousts  the  jurisdiction  and  the 
whole  proceeding  abates.16 

If  the  court  erroneously  enter  a  personal  judgment  against  'the  de- 
fendant, in  addition  to  the  order  requiring  the  sale  of  the  property  at- 
tached, such  personal  judgment  is  void,  but  the  error  does  not  vitiate 
the  judgment  dealing  with  the  property.17 

If  suit  is  brought  agaist  a  nonresident,  and  constructive  service  by 
publication  be  obtained,  and  attachment  be  issued  and  levied,  the  plain- 
tiff can  not,  without  new  service  and  attachment,  amend  his  pleadings 
and  set  up  a  new  cause  of  action  and  take  judgment  on  it ;  and  if  he  at- 
tempt to  do  so,  and,  in  the  judgment,  combine  the  amount  claimed  in 
the  original  cause  of  action  with  that  claimed  in  the  new,  in  such  way 
that  they  can  not  be  separated,  the  whole  judgment  is  void.18 

"Hochstadler  v.  Sam,  73  Texas,  315,  11  S.  W.,  408;  Scott  v.  Streepy,  73  Texas, 
547,  11  S.  W.,  532;  York  v.  State,  73  Texas,  651,  11  S.  W.,  869;  Martin  v.  Cobb, 
77  Texas,  546,  14  S.  W.,  162;  Pennoyer  v.  Meff,  95  U.  S.,  714. 

13  Barelli  v.  Wagner,  5  Texas  Civ.  App.,  445,  27  S.  W.,  17 ;  Cooper  v.  Reynolds, 
10  Wall,  319;  Matthews  v.  Dinsmore,  109  U.  S.,  216. 

18  Hochstadler  v.  Sam,  73  Texas,  315,  11  S.  W.,  408. 

"Barelli  v.  Wagner,  5  Texas  Civ.  App.,  445,  27  S.  W.,  17;  Foote  v.  Sewall,  81 
Texas,  660,  17  S.  W.,  373. 

"Berry  Bros.  v.  Nelson  Davis  &  Co.,  77  Texas,  191,  13  S.  W.,  578;  Goodman  v. 
Henley  &  Gabberts,  80  Texas,  499,  16  S.  W.,  432. 


PROCEEDINGS    QUASI   IN   EEM.  45 

If  such  a  suit  is  brought  and  attachment  be  issued  and  levied,  and 
the  defendant  subsequently  dies,  the  lien  of  the  attachment  is  not  lost 
by  his  death  and  upon  making  his  heirs  parties  and  giving  notice  to 
them,  if  the  facts  are  not  such  as  to  require  administration  on  the  es- 
tate, the  court  can  proceed  to  judgment,  which  will  bind  the  res  levied 
on,  to  the  extent  of  the  decedent's  interest  and  that  of  his  heirs"  in- 
herited from  him. 

If  there  is  necessity  for  administration,  the  lien  would  continue,  but 
must  be  enforced  through  the  probate  court.19 

The  seizure  of  the  thing  in  these  cases  is  usually  under  writ  of  at- 
tachment, but  the  principles  would  be  the  same  if  it  were  under  a  dis- 
tress warrant,  or  other  process  issued  at  the  beginning  or  during  the 
progress  of  the  case.  The  seizure  before  judgment  is,  however,  essential 
to  the  court's  jurisdiction,  and  unless  this  jurisdiction  has  attached  at 
the  time  of  rendering  judgment,  the  adjudication  is  void,  and  no  final 
process  can  be  issued  on  or  supported  by  it.20 

Garnishment  proceedings  instituted  against  a  resident  debtor  of  a 
nonresident  creditor  and  served  upon  the  debtor,  the  nonresident  cred- 
itor being  cited  by  publication,  is  in  Texas  good  as  a  proceeding  quasi 
in  r&m,  and  will  bind  the  nonresident  creditor  to  the  extent  of  the  judg- 
ment in  the  garnishment  proceeding.21 


Trespass  to  Try  Title. 

Suits  brought  for  specific  property  within  the  jurisdiction  of  the  court 
when  the  purpose  is  not  to  deal  with  the  title  in  the  abstract,  nor  to  com- 
pel the  defendant  to  perform  some  act  regarding  the  property,  but  for 
the  court  to  act  directly  upon  the  property,  as  in  trespass  to  try  title, 
are  proceedings  quasi  in  rem.22 


Partition. 

The  same  is  true  in  partition  suits.23 

19  Stewart  v.  Anderson,  70  Texas,  590,  8  S.  W.,  295. 

20  Rogers  v.  Bin-bridge,  5  Texas  Civ.  App.,  68,  24  S.  W.,  300. 

21  Pennoyer  v.  Neff,  95  U.  S.,  714. 

"Hardy  v.  Beaty,  84  Texas,  562,  19  S.  W.,  778;  Sloan  v.  Thompson,  4  Texas 
Civ.  App.,  419,  23  S.  W.,  613. 

^Taliaferro  v.  Butler,  77  Texas,  578,  14  S.  W.,  191;  Foote  v.  Sewall,  81  Texas, 
662,  17  S,  W.,  373. 


46  PROCEEDINGS    IN    PERSONAM,    IN    REM,   AND   QUASI   IN   REM. 

Suits  to  Foreclose  Liens. 

Suits  brought  to  subject  some  property  specifically  named  in  the 
pleadings  to  the  payment  of  a  debt  claimed  to  be  either  a  legal  or 
•equitable  charge  thereon,  as  in  foreclosure  of  liens,  also  fall  in  this 

class.24 

Suits  to  Remove  Cloud. 

So  also  do  suits  affecting  the  title  to  property  within  the  jurisdiction 
of  the  court,  as  suits  to  remove  cloud  from  title,  etc.,  where  the  court 
deals  directly  with  the  title,  and  is  authorized  by  law  to  render  judgment 
passing  the  title  from  one  party  to  the  other.  In  cases  of  this  character 
the  nature  of  the  proceeding  depends  upon  the  condition  last  stated, — 
namely,  the  authority  of  the  court,  by  its  own  act,  to  deal  directly  with 
the  title  and  divest  it  out  of  one  party  and  vest  it  in  the  other.  This 
power  is  possessed  by  the  courts  in  Texas.  If  this  power  does  not  exist, 
and  the  court  is  compelled  to  deal  with  the  party,  and  require  him  to 
convey  the  title,  as  is  the  case  in  the  chancery  courts,  the  proceeding 
would  not  be  quasi  in  rem  but  would  be  strictly  in  personam,  and  void, 
unless  there  were  good  service.25 

NECESSITY  FOR  NOTICE. 

As  stated  above,  if  the  proceedings  be  strictly  in  personam,  valid  legal 
service  must  be  had,  or  appearance  made,  or  judgment  can  not  be 
rendered  that  would  have  any  effect  upon  the  rights  of  a  nonresident 
party.  If  the  proceeding  be  in  rem  strictly,  necessity  for  personal  ser- 
vice does  not  exist.26  It  is  usual,  however,  and  certainly  the  better 
practice,  even  here  to  give  some  form  of  notice  by  posting,  etc.  If  the 
proceeding  be  one  quasi  in  rem,  constructive  service  according  to  the  law 
under  which  the  court  is  held  is  all  that  is  required  in  order  to  the 
regularity  of  the  proceedings.  As  seen  above,  the  authorities  differ  as 
to  whether  such  constructive  service  is  essential  to  the  legal  existence  of 
the  jurisdiction,  the  Supreme  Court  of  the  United  States  holding  that 
under  the  Tennessee  statutes  it  is  not,  the  Supreme  Court  of  Texas  hold- 
ing that  under  the  Texas  statutes  it  is.  These  differences  are  doubtless 

24  Heidenheimer,  Ex.,  v.  Loving,  6  Texas  Civ.  App.,  560,  26  S.  W.,  99 ;  Waldorf  v. 
Scott,  46  Texas,  1;  Pennoyer  v.  Neflf,  95  U.  S.,  714. 

"Aradt  v.  Griggs.  134  U.  S.,  316;  Rev.  Stats.  1895,  art.  1338. 

26  Heidstetter  v.  Elizabeth  Oil  Cloth  Co.,  112  U.  S.,  294,  5  Sup.  Ct.  Rep.,  135. 


COSTS.  47 

due  largely  to  the  difference  in  the  statutes  under  which  the  proceedings 
were  had. 

If  in  a  proceeding  quasi  in  rem  perfect  service  should  be  obtained  on 
the  defendant,  or  he  should  voluntarily  appear,  this  would  give  the 
court  full  jurisdiction  over  him,  and  it  could  proceed  in  the  case  as  in 
one  originally  personal  in  its  nature. 


COSTS. 

In  proceedings  strictly  in  rem  the  costs  of  the  action  must  be  paid 
from  the  proceeds  of  the  property  in  the'  custody  of  the  court  or  by  the 
parties  instituting  the  proceeding. 

In  proceedings  quasi  in  rem  the  same  doctrine  is  enforced.  A  per- 
sonal judgment  against  the  defendant  for  costs  is  not  only  erroneous, 
but  void;  but  costs  may  be  adjudged  to  be  paid  out  of  the  proceeds  of  the 
property  in  the  custody  of  the  court.  The  rule  is  stated  thus  in  Freeman 
v.  Alderson26a:  "Whilst  the  costs  of  an  action  may  properly 
be  satisfied  out  of  the  property  attached  or  otherwise  brought 
under  the  control  of  the  court,  no  personal  liability  for  them  can  be 
created  against  the  absent  or  nonresident  defendant;  the  power  of  the 
court  being  limited,  as  we  have  already  said,  to  the  disposition  of  the 
property  which  is  alone  within  its  jurisdiction." 

This  is  the  rule  recognized  and  enforced  in  Texas.  In  some  of  the 
cases  the  language  used  is  general  and  might  make  the  impression  that 
costs  could  not  be  adjudged  at  all  against  the  nonresident  or  his  property 
but  the  real  meaning  is  that  no  personal  judgment  can  be  rendered 
therefor  against  the  nonresident  defendant  which  will  authorize  execu- 
tion against  his  property.  It  is  not  intended  to  deny  the  power  of  the 
court  to  adjudge  the  costs  or  such  part  thereof  as  is  properly  charge- 
able to  the  defendant  against  the  property  in  the  custody  of  the  court, 
and  to  satisfy  them  out  of  the  proceeds  of  such  property.27 

2ea  119  U.  S.,  1*9(1886). 

"Taliaferro  v.  Butler,  77  Texas,  578  (1890),  14  S.  W.,  191;  Foote  v.  Sewall,  81 
Texas,  459,  17  S.  W.,  373;  Hardy  v.  Beaty,  84  Texas,  569,  19  S.  W.,  778;  Gunter 
v.  Armstrong,  2  Texas  Civ.  App'.,  600,  21  S.  W.,  607. 


48  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF   TEXAS. 


CHAPTEK  IV. 

THE  DEVELOPMENT  OF  THE  JUDICIAL  SYSTEM  OP  TEXAS. 
COMMON  AND  CIVIL  LAW. 

The  jurisprudence  of  Texas  is  in  many  respects  different  from  that  of 
any  other  country.  It  is  a  resultant  of  the  combined  forces  of  the  civil 
and  common  law.  For  centuries  these  two  great  systems  of  jurisprudence 
have  controlled  the  governments  of  Southern  and  Western  Europe,  the 
civil  law  having  its  sway  over  the  Latin,  and  the  common  law,  over  the 
Anglo-Saxon  and  kindred  peoples.  In  connection  with  them  in  their 
several  jurisdictions  has  grown  up  the  splendid  civilization  of  Europe. 
As  these  several  European  nations  established  their  colonies  in  the  New 
World  each  colony  brought  with  it  the  traditions,  habits,  and  character 
of  its  parent  state ;  and  these  influences  of  the  Old  World  determined,  to 
a  large  extent,  the  character  of  the  several  social  and  governmental  in- 
stitutions of  the  New. 

England  was  a  common  law  country,  and  in  all  her  colonies,  that  sys- 
tem was  the  base  of  colonial  jurisprudence.  Spain  held  most  rigidly  to 
the  ancient  Roman  or  civil  law  and  that  system  was  the  base  of  the 
jurisprudence  of  all  her  American  dependencies.  Neither  system  could 
be  transplanted  intact.  The  natural  and  social  conditions  in  the  two  hem- 
ispheres were  too  different,  and  each  code  of  laws  received  characteristic 
modifications,  first  by  those  in  authority  in  Europe,  and  subsequently  by 
the  colonists  and  their  descendants.  The  respective  characteristics  of  the 
English  and  Spanish  peoples  manifested  themselves  here  and  the  changes 
in  the  English  common  law  by  the  Anglo-Americans  were  much  greater 
and  more  fundamental  than  those  wrought  by  the  Spanish-Americans 
in  the  Spanish  civil  law. 

Texas  furnished  a  meeting  place  and  battle  ground  for  these  two  peo- 
ples and  their  institutions.  The  Spanish-American  and  the  Spanish  civil 
law  were  in  possession  of  the  territory.  The  invasion  was  by  the  Anglo- 
American  and  the  common  law.  Between  the  peoples,  the  struggle  was 
sharp,  short,  and  decisive.  The  Anglo-American  was  victorious.  Be- 
tween the  systems  of  jurisprudence,  the  contest  was  protracted  and  the  re- 
sult a  compromise.  The  common  law  ultimately  prevailed,  but  its  victory 
involved  the  loss  of  some  of  its  most  cherished  doctrines. 

The  founders  of  the  government  of  Texas  were  free  to  choose  the  ma- 
terials for  their  structure  from  whence  they  would.  Their  sympathies 
were  with  the  common  law,  but  the  civil  law  had  been  in  force,  and 
marital  relations,  land  titles,  and  other  rights  permanent  in  their  nature 


CONCEPTION    OF   A   JUDICIAL   SYSTEM.  49 

had  grown  up  under  it.  Sudden  and  radical  changes  would  have  been 
prejudicial,  if  not  impracticable,  and  the  Texans,  in  their  wisdom,  de- 
clined to  disturb  too  violently  existing  institutions.  On  the  contrary,  they 
adopted  many  of  the  civil  law  doctrines,  modifying  them  to  suit  their  pur- 
poses and  conditions,  and  retained  them  as  part  of  the  permanent  juris- 
prudence of  the  country. 

Thus  it  will  be  seen  that  our  Texas  law  rests  upon  the  common  law  of 
England,  as  adapted  to  American  conditions  by  the  several  States  of  the 
TJnior  prior  to  the  Texas  Revolution  and  upon  the  ancient  Roman  law, 
as  modified  in  its  transmission  through  Spain  and  her  American  de- 
pendencies, and  is  formed,  to  a  large  extent,  from  selections  from  each. 
In  most  instances,  these  selections  were  wisely  made  and  the  result  is  a 
blending  in  one  homogeneous  whole  of  much  that  is  best  in  each  of  the 
two  great  sources  from  which  the  material  was  taken. 

The  peculiarities  of  the  system  thus  established  embrace  matters  both 
of  substantive  and  adjective  law.  The  most  interesting  relate  to  the  first 
of  these  divisions — the  law  regulating  substantive  rights;  but  these  are 
apart  from  our  present  purpose,  which  concerns  only  so  much  of  the  ad- 
jective law — or  law  of  procedure — as  is  involved  in  the  development  of  the 
judicial  system. 

This  development  may  be  conveniently,  though  somewhat  arbitrarily, 
divided  into  two  periods — the  first  extending  from  the  establishment  of 
the  Mexican  Republic,  in  1824,  to  the  annexation  of  Texas  to  the  United 
States  in  1845 ;  the  second  extending  from  annexation  to  the  present 
time.  The  first  of  these  periods  we  may  designate  as  the  formative,  and 
the  second  as  the  modifying. 


CONCEPTION  OF  A  JUDICIAL  SYSTEM. 

A  court  may  be  broadly,  though  somewhat  technically,  defined  as  an 
agency  created  by  the  sovereign  to  determine  rights  and  apply  the  sanc- 
tions of  the  law  to  individual  conduct.  The  aggregate  of  such  agencies, 
with  their  co-ordinated_  powers,  existing  in  any  government,  constitutes 
the  judicial  system  of  that  government.  The  character  of  this  system 
depends  upon  the  kind  and  number  of  these  agencies;  and  these,  in 
turn,  depend  largely,  though  not  entirely,  upon  four  considerations: 
First,  the  conception  held  by  the  sovereign  of  the  purposes  to  be  ac- 
complished by  these  agencies  and  the  power  necessary  to  be  conferred  upon 
them ;  second,  the  basis  of  the  distribution  of  this  power  among  the  sev- 
eral  agencies;  third,  the  number  and  kind  of  officers  who  are  to  repre- 
sent or  constitute  such  agencies;  and,  fourth,  the  methods  of  procedure 
in  such  agencies.  Other  elements  enter  in  but  these  are  the  most  potent. 
It  would  be  tedious  to  attempt  to  trace  the  changes  in  these  several  re- 
4 — Pleading 


50  DEVELOPMENT   OF   JUDICIAL   SYSTEM   OF   TEXAS. 

gards  in  the  development  of  our  system  and  no  effort  will  be  made  to  do 
so.  Still  it  will  be  well  to  bear  these  thoughts  in  mind  as  we  consider  the 
subject. 


TEXAS  AS  A  MEXICAN  STATE. 
UNDER  THE  CONSTITUTIVE  ACT  OF  FEDERATION. 

As  stated  above,  prior  to  the  revolution  in  Mexico,  the  Eoman  civil 
law,  with  its  various  Spanish  modifications,  was  in  force  in  all  the 
dependencies  of  Spain  in  the  North  American  continent.  The  change 
of  government  wrought  by  the  revolution  necessitated  material  changes 
in  its  jurisprudence;  still  this  civil  law  remained  as  its  base.  After 
the  overthrow  of  the  usurper  Iturbide,  the  Mexican  congress  reassembled 
and  adopted  the  "Constitutive  Act  of  Federation"  as  the  plan  of  govern- 
ment for  the  Mexican  nation.  This  act  was  promulgated  January,  31, 
1824. 

In  this  federation,  Texas  was  combined  with  Nuevo  Leon  and  Coahuila, 
forming  the  Internal  State  of  the  East.1  This  constitutive  act  denied 
to  the  several  States  the  power  to  adopt  permanent  constitu- 
tions and  organize  permanent  governments  until  the  permanent 
Federal  Constitution  should  be  adopted.  In  the  meantime,  the 
existing  State  governments  were  to  continue  provisionally.2  By 
Decree  No.  403,  of  date  May  7,  1824,  the  Mexican  Congress  divided 
the  Internal  State  of  the  East,  separating  Nuevo  Leon  from  Coahuila 
and  Texas.3  From  this  time  until  the  Texas  Revolution  Coahuila  and 
Texas  constituted  a  State.  The  first  Constituent  Congress  of  Coahuila 
and  Texas  met  on  August  13,  1824,  at  Saltillo,  and  by  Decree  No.  1  de- 
clared itself  duly  installed,  and  inaugurated  the  provisional  State  gov- 
ernment. 

Section  10  of  this  Decree  is  as  follows : 

"The  judicial  power  shall,  for  the  present,  be  vested  in  the  authorities 
by  which  it  is  now  exercised  in  the  State,  and  in  the  administration  of 
justice  they  shall  be  governed  by  the  laws  in  use  so  far  as  they  are  not 
opposed  to  the  form  of  government  adopted."4 

This  provision  continued  the  former  civil  law  courts. 

1  Art.  VII.,  Constitutive  Acts  of  the  Mexican  Federation. 

1  Arts.  XXIV  and  XXV,  Constitutive  Acts  of  the  Mexican  Federation. 

*  Legislacion  Mexicana,  Dublan  y  Lozano,  I,  706. 

4  Laws  and  Decrees  of  Coahuila  and  Texas,  p.  4. 


UNDER   FEDERAL    CONSTITUTION    OP   MEXICO.  51 


UNDER  FEDERAL,  CONSTITUTION  OP  MEXICO. 

The  "Constitutive  Federal  Government"  was  superseded  by  the  adop- 
tion of  "the  Federal  Constitution  of  the  United  Mexican  States,  sanc- 
tioned by  the  General  Constitutive  Congress,  on  the  4th  of  October,  1894." 
This  Constitution  was  intended  to  be  permanent.  It  was  modeled,  to  a 
large  extent,  on  the  Constitution  of  the  United  States,  although  the 
influence  of  Spanish  and  civil  law  ideas  is  manifest  throughout  the  in- 
strument. It  recognized  practically  the  same  division  of  power  between 
the  national  and  State  governments  that  exists  in  the  Constitution  of 
the  United  States.  The  division  of  the  powers  of  each  of  these  govern- 
ments into  legislative,  executive  and  judicial  departments  was  declared, 
though  the  lines  of  separation  are  not  identical  with  those  obtaining  in 
•common  law  countries,  the  most  noticable  difference  being  in  regard  to 
the  right  of  construing  the  Constitution  and  statutes.  This  power  was 
•conferred  exclusively  on  the  Congress,  and  no  question  as  to  the  mean- 
ing of  the  Constitution  or  a  statute,  nor  of  the  violation  of  the  former  by 
the  latter,  could  be  determined  by  the  courts.  If  such  difficulties  should 
arise  they  were  to  be  called  to  the  attention  of  Congress  and  it  was  to 
resolve  the  doubt;  on  the  other  hand,  common  law  courts  had  for  cen- 
turies unhesitatingly  exercised  the  power  to  interpret  and  construe 
statutes,  and  the  American  common  law  courts,  from  the  organization  of 
the  Supreme  Court  of  the  United  States,  have  repeatedly  exercised  the 
power  of  determining  the  constitutionality  of  the  acts  of  Congress  and  of 
the  State  legislatures. 

The  permanent  Constitution  of  the  State  of  Coahuila  and  Texas  was 
not  promulgated  until  March  11,  1827.5  This  instrument  clearly  shows 
the  influence  of  the  various  forces  then  striving  for  the  mastery.  It  is 
neither  civil  law  nor  common  law,  but  is  manifestly  a  compromise  between 
the  spirit  of  conservatism,  holding  to  the  traditions  and  institutions  of 
the  past,  and  the  spirit  of  innovation,  insising  upon  the  adoption  of  a 
government  similar  to  that  of  the  United  States  of  the  North. 

Under  this  Constitution,  until  1832,  the  State  Congress  was  to  con- 
sist of  twelve  deputies,  only  two  of  whom  were  to  be  from  Texas,  the 
other  ten  having  an  exclusively  Mexican  constituency.  The  first  Con- 
gress assembled  on  July  1,  1827,8  and  the  first  governor  was  inaugurated 
on  August  1,  1827.7 

B  Laws  and  Decrees  of  Coahuila  and  Texas,  p.  343. 
•Id.,  p.  47. 
*  Id.,  p.  63. 


52  DEVELOPMENT    OF   JUDICIAL    SYSTEM    OF   TEXAS. 

Judiciary  Title  in  Constitution  of  1827. 

The  judiciary  title  of  this  Constitution  consists  of  thirty-four  articles.8 
The  system  of  courts  contemplated  by  it  was  composed  of  the  inferior 
tribunals  theretofore  existing  and  a  Supreme  Court  t»  sit  at  the  capital 
having  jurisdiction  of  appeals  from  the  more  important  inferior  courts 
throughout  the  State.  In  this  system  of  courts  was  vested  all  the  judicial 
power.  No  special  tribunals  were  to  be  created,  and  no  retroactive  laws 
were  to  be  passed,  but  all  proceedings  were  to  be  uniform,  according  to 
pre-established  rules  and  to  the  written  Constitution.  The  military  was 
subordinated  to  the  civil  authorities.  The  courts  were  forbidden  to  con- 
strue or  pass  on  the  validity  of  any  constitutional  provision  or  statute, 
the  determination  of  all  such  matter  being  vested  exclusively  in  Congress. 
Attempt  to  arbitrate  was  made  a  condition  precedent  to  the  right  to  liti- 
gate, except  in  special  cases.  No  indictments  were  required  in  criminal 
prosecutions.  Petty  offenses  were  dealt  with  summarily  without  formal 
trial  or  right  of  appeal.  In  more  serious  violations  of  the  law,  the  ac- 
cused might  be*arrested  and  detained  for  forty-eight  hours  without  formal 
charges,  but  if  no  such  charges  were  made  within  that  time,  he  was 
required  to  be  released.  Prosecutions  and  trials  were  to  be  public.  Con- . 
fiscation,  torture,  and  compulsion  were  forbidden;  seizures  and  searches 
were  declared  unlawful,  except  in  specified  cases,  and  must  then  be  made 
in  conformity  to  law. 

Article  192  is  worthy  of  reproduction;  because  it  is  the  first  mention 
of  a  jury  in  any  law  ever  in  force  throughout  Texas  territory;  and  also 
because  it  indicates  the  attitude  of  Congress  and  the  people  in  reference 
to  this  institution.  It  is  as  follows :  "One  of  the  main  objects  of  at- 
tention of  Congress  shall  be  to  establish  the  trial  by  jury  in  criminal  cases, 
to  extend  the  same  gradually,  and  even  to  adopt  it  in  civil  cases  in  pro- 
portion as  the  advantages  of  this  valuable  institution  become  practically 
known." 

The  contrast  between  its  doubtful  and  experimental  tone  and  the 
vigorous  and  imperative  language  of  the  Anglo-American  constitutions 
on  this  subject  is  sharp  and  clear.  The  spirit  of  doubt  and  indecision 
expressed  in  the  article  dominated  those  charged  with  its  enforcement, 
and  no  active  steps  were  taken  to  begin  the  experiment  of  trial  by  jury 
for  several  years. 

8  Laws  and  Decrees  of  Coahuila  and  Texas,  p.  337. 


UNDER   FEDERAL    CONSTITUTION    OF    MEXICO.  53 

First  Texas  Jury  Law. 

On  September  1,  1830,  was  passed  Decree  No.  136,  of  the  laws  and  de- 
crees of  Coahuila  and  Texas,"  relating  to  trial  by  jury.  The  substance  of 
this  decree  is  as  follows :  The  ayuntamiento  in  each  district  capital  was 
to  select  yearly  from  among  the  citizens  of  the  district  from  twenty-one 
to  eighty-four  jurors,  who  should  possess  the  same  qualifications  as 
members  of  the  ayuntamiento.  The  persons  so  selected  were  to  be  the 
jurors  for  one  year.  The  preliminary  examination  of  criminal  offenses 
was  to  be  conducted  as  theretofore  by  the  primary  courts  of  justice,  but 
whenever  the  evidence  introduced  satisfied  the  primary  judge  that  the 
crime  was  proved,  he  was  to  desist  from  further  investigation  of  the 
case,  and  send  the  prisoner  and  the  proceedings  had  before  him,  to 
some  alcalde  of  the  capital  of  the  district.  The  proceedings  were  to  be 
continued  before  this  alcalde  who  should  at  once  require  the  prisoner 
to  choose  his  counsel,  and  immediately  thereafter  the  trial  should  begin. 
The  prisoner  then  selected  from  the  list  of  jurors  seven  to  sit  in  his 
case.  The  prosecution  could  make  objection  to  two  jurors,  provided  this 
was  done  within  twenty-four  hours  after  they  were  chosen.  The  places 
thus  made  vacant  were  to  be  filled  by  selection  by  the  prisoner  from  the 
other  jurors.  The  seven  jurors  were  then  to  be  notified  by  the  alcalde 
and  were  to  meet  within  four  days  and  were  to  be  sworn  to  try  the  case. 
From  these  jurors  a  secretary  and  a  fiscal  were  to  be  selected.  The 
fiscal  thus  selected  was  to  make  an  examination  of  the  proceedings  up 
to  that  time  and  form  a  "recapitulation"  thereof,  and  express  his  opinion 
as  to  the  guilt  or  innocence  of  the  prisoner.  For  this  he  was  allowed 
eight  days,  and  immediately  thereafter  the  jury  was  to  meet  again  pub- 
licly, and  the  proceedings  and  recapitulation  were  to  be  read  in  the 
presence  of  the  prisoner  and  his  counsel,  and  the  record  was  to  be  de- 
livered to  them,  and  upon  the  sixth  day  after  such  delivery  the  jury  was  to 
reassemble  and  proceed  with  the  investigation,  having  the  right  to  exam- 
ine the  prisoner  and  his  counsel.  The  case  was  then  to  be  discussed  by  the 
jury  until  all  of  them  signified  that  they  were  prepared  to  vote.  Each 
juror  was  then  to  vote  by  ballot,  signifying  his  judgment  as  to  the  guilt 
or  innocence  of  the  prisoner,  and  if  he  believed  him  guilty  specifying 
the  punishment  to  be  inflicted.  If  a  majority  concurred  in  the  innocence 
of  the  prisoner  he  was  acquitted;  if  a  majority  concurred  in  his  guilt 
and  as  to  the  punishment,  he  was  adjudged  guilty,  and  the  punishment 
was  fixed  as  specified  in  the  ballots.  If  a  majority  found  him  guilty,  but 
differed  as  to  the  punishment,  the  question  of  punishment  was  recon- 
sidered until  a  majority  should  agree  on  it.  If  the  prisoner  were  ac- 

« 

9  Laws  and  Decrees  of  Coahuila  and  Texas,  p.  151. 


54  DEVELOPMENT   OF   JUDICIAL   SYSTEM   OF   TEXAS. 

quitted  this  ended  the  proceedings;  if  he  were  found  guilty  judgment 
could  not  be  pronounced  in  that  tribunal,  but  all  the  proceedings  were 
passed  to  the  first  hall  of  the  tribunal  of  justice,  which  wa&  required  to- 
pass  upon  the  question  of  punishment,  and  if  the  punishment  as  fixed 
by  the  jury  was  moderated  or  approved,  judgment  to  that  effect 
was  rendered  by  the  court,  and  from  this  no  appeal  could  be 
taken.  If,  however,  this  tribunal  should  increase  the  punishment  as 
fixed  by  the  jury,  an  appeal  lay  to  the  second  hall  of  the  tribunal  of  jus- 
tice. If  this  second  appellate  court  concurred  in  the  increase  of  the 
punishment  this  should  be  final.  In  case  the  punishment  assessed  were 
capital  an  appeal  lay  to  the  tribunal  of  justice,  composed  of  all  three 
halls  of  the  supreme  court. 

This  law  had  no  application  to  civil  cases,  and  is  so  essentially  differ- 
ent from  all  common  law  ideas  of  juries  in  criminal  cases  that  it  em- 
phasizes very  greatly  the  predominant  influence  of  civil  law  in  our  juris- 
prudence at  that  time. 


Decree  No.  39. 

On  page  60  of  the  Laws  and  Decrees  of  Coahuila  and  Texas,  as  pub- 
lished authoritatively  in  Texas  in  1839,  appears  this  title: 

"DECKEE  NO.  39. 
"LAW  FOE  THE  EEGULATION  OF  JUSTICE." 

Neither  text  nor  date  appears.  The  next  preceding  decree  is  dated 
June  20,  1827,  and  the  next  succeeding  June  22,  1827.  Eeferences  to 
this  decree  in  other  portions  of  the  laws  of  Coahuila  show  it  to  have  been 
an  enactment  of  some  length,  evidently  designed  to  meet  the  conditions 
in  the  Mexican  portion  of  the  State  rather  than  in  Texas.  An  unofficial 
copy  to  which  I  have  had  access  shows,  that  there  was  nothing  in  the 
decree  which  relates  to  juries  or  which  has  left  any  permanent  impres- 
sion on  our  judiciary. 


Chambers  Jury  Law,  Decree  No.  277. 

On  April  13,  1834,  was  passed  Decree  No.  277,  commonly  known  as 
the  "Chambers  Jury  Law."  It  comprised  an  hundred  and  forty  articles, 
extending  from  page  254  to  page  270  of  the  Laws  and  Decrees  of 
Coahuila  and  Texas.  It  is  extremely  interesting  and  instructive,  but  its 
length  forbids  its  reproduction.  Its  title  and  preamble  are  as  follows: 


UNDER   FEDERAL   CONSTITUTION   OP   MEXICO.  55 

"DECREE  No.  277. 

"The  Constitutional  Congress  of  the  free,  independent  and  sovereign 
State  of  Coahuila  and  Texas,  desirous  to  provide  for  the  happiness  and 
prosperity  of  their  constituents,  and  to  comply  with  the  obligation  im- 
posed upon  them  by  the  192nd  article  of  the  Constitution,  decree  the 
following: 

"A  plan  for  the  better  regulation  of  the  administration  of  justice  in 
Texas." 

The  article  of  the  Constitution  referred  to  is  the  one  quoted  above. 

This  act  was  to  be  operative  in  connection  with  the  Constitution,  and 
the  courts  provided  by  it  were  to  be  subordinate  to  the  Supreme  Court. 
So  the  Texas  system,  after  its  passage,  consisted  of  the  Supreme  Court 
of  Coahuila  and  Texas,  as  created  by  the  Constitution  and  statutory 
courts  provided  for  by  this  act. 

These  statutory  courts  consisted  of,  first,  a  superior  court  of  Texas, 
to  be  presided  over  by  a  superior  judge,  with  a  circuit  comprising  the 
whole  of  Texas,  which  was  divided  into  three  districts,  namely,  Bexar, 
Brazos,  and  Nacogdoches,  in  each  of  which  the  superior  judge  was  to 
hold  court  three  times  each  year  at  designated  times  and  places ;  second, 
courts  of  less  jurisdiction,  in  each  municipality,  to  be  held  by  a  primary 
judge;  and,  third,  still  inferior  courts  in  the  smaller  political  subdi- 
visions. This  act  was,  by  its  terms,  exclusive,  and  undertook  to  sup- 
plant all  courts  theretofore  existing  in  Texas.  In  most  cases  submitted 
to  them  the  decisions  of  the  lowest  courts  were  final.  The  primary 
courts  had  no  jurisdiction  to  try  criminal  cases  except  the  most  trivial 
misdemeanors;  but  the  primary  judges  had  extensive  powers  as  examin- 
ing and  committing  magistrates.  In  civil  matters,  however,  the  jurisdic- 
tion of  the  primary  courts  was  very  extensive.  They  had  exclusive  original 
jurisdiction  of  all  suits  involving  more  than  ten  dollars  in  value,  without 
regard  to  the  nature  of  the  litigation.  The  decision  in  all  such  cases  was 
final,  unless  appeal  was  prosecuted  to  the  superior  court.  The  superior  court 
had  exclusive  original  jurisdiction  in  all  criminal  cases,  except  the 
smallest  misdemeanors,  and  appellate  jurisdiction  in  all  civil  cases  tried 
in  the  primary  courts.  Appeal  lay  from  all  judgments  of  the  superior 
courts  to  the  Supreme  Court  of  the  State. 

The  procedure  in  these  courts  was  not  regulated  by  the  rules  either 
of  the  civil  or  common  law,  but  was  peculiar  to  itself.  The  general 
provisions  regarding  juries  are  important  enough  to  quote : 

"Art.  2.  All  cases,  civil  and  criminal,  shall  be  tried  by  juries  in  the 
manner  and  form  prescribed  by  this  law." 

"Art.  6.  For  the  trial  of  civil  causes,  there  shall  be  in  every  muni- 
cipality a  tribunal  for  each  primary  judge,  composed  of  the  judge,  a 


56  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF    TEXAS. 

subaltern  sheriff,  and  the  jury.     Their  sessions  shall  be  held  every  two 
months  of  the  year." 

"Art.  7.  In  all  causes,  civil  and  criminal,  the  jury  shall  be  composed 
of  twelve  men,  who  shall  be  sworn,  and  the  joint  opinion  of  eight  of 
them  shall  be  considered  the  decision  of  the  jury." 

"Art.  24.  Juries  are  the  judges  of  all  the  facts  in  controversy,  and  all 
the  laws  concerning  evidence,  subject  to  the  instructions  from  the  judge, 
but  they  have  the  right  to  differ  with  him  in  opinion;  but  in  regard  to 
all  other  laws,  they  shall  be  regulated  strictly  according  to  their  literal 
tenor. 

"Art.  25.  The  facts  established  by  the  decision  of  the  jury  shall  be 
considered  as  conclusive,  and  can  not  be  controverted  before  any  tribunal 
or  authority,  except  in  the  single  case  of  the  corruption  of  the  jury." 

"Art.  72.  The  judge  shall  make  such  observations  upon  the  evidence 
and  facts  adduced  on  the  trial  as  he  may  think  proper  and  necessary 
for  the  instruction  of  the  jury,  who  shall  retire  for  deliberation." 

"Art.  74.  The  verdict  of  the  jury  being  agreed  upon  by  the  number 
required  by  law,  it  shall  be  committed  to  writing,  expressing  all  the  im- 
portant circumstances  that  may  have  been  established  by  the  evidence, 
and  shall  be  signed  by  all  the  jurors.  Those,  however,  who  may  dissent 
from  the  verdict,  shall  be  permitted  to  express  their  separate  opinion." 

It  is  readily  apparent  that  the  jury  contemplated  by  this  act  was  a  very 
different  institution  from  the  common  law  jury,  or  that  with  which  we 
are  now  familiar.  No  provision  is  made  for  a  grand  jury. 

The  petit  jury  decided  questions  of  law  and  fact,  both  as  to  the  admis- 
sion of  evidence  and  its  legal  effect.  The  verdict  could  be  rendered  by 
eight  or  more  jurors,  and  the  minority  could  file  dissenting  opinions. 
The  verdict  was  conclusive  upon  the  court  in  which  it  was  returned,  and 
all  appellate  courts,  except  in  the  one  case  of  the  corruption  of  the  jury. 

There  were  numerous  other  differences  between  the  procedure  pro- 
vided for  these  courts  and  the  practice  in  the  courts  with  which  the  An- 
glo-Americans had  been  familiar.  Probably  the  most  noticeable  is  the 
absence  of  recognition  of  the  common  law  distinction  between  legal  and 
equitable  rights  and  remedies,  and  the  giving  of  one  tribunal  juris- 
diction of  all  causes,  without  regard  to  that  distinction.  Another  is  the 
requirement  of  an  attempt  to  arbitrate  as  a  condition  precedent  to  suit; 
another  is  the  provision  as  to  pleading.  Here  the  contrast  is  so  great  that 
I  quote  a  few  paragraphs  as  follows: 

"Art.  94.  In  order  to  commence  an  action  in  writing,  the  complain- 
ant shall  present  himself  before  the  primary  judge  of  the  respective 
jurisdiction,  and  shall  signify  his  demand  by  a  petition,  plainly  and 
clearly  expressed,  accompanied  by  a  certificate  of  having  attempted  in 
vain  a  conciliation  with  the  opposite  party,  and  without  this  requisite 
the  demand  shall  not  be  admitted." 

"Art.  101.     Neither  of  the  parties  shall  be  permitted  to  present  more 


PROVINCIAL   GOVERNMENT.  57 

than  two  writings;  and  the  term  of  three  days  shall  be  allowed  for  the 
replica,,  counted  from  that  of  the  contestation;  and  the  same  time  shall 
be  allowed  for  the  duplica,  counted -from  that  of  the  replica;  and  the 
judge  shall  deliver  these  documents  to  the  parties  to  whom  they  may 
respectively  appertain  immediately  on  receiving  them." 

The  superior  court  contemplated  in  this  act  was  never  organized  in 
any  of  the  three  districts,  and  no  session  of  such  court  was  ever  held; 
hence,  this  first  attempt  to  establish  a  Texas  judicial  system  was  of  little, 
if  any,  practical  effect. 


REVOLUTIONARY  PERIOD. 

The  state  of  the  country  was  too  unsettled  to  permit  of  orderly  proceed- 
ings in  any  department.  The  causes  which  culminated  in  the  Texas 
revolution  were  actively  at  work,  and 'the  attention  of  all  parties  was 
filled  with  other  things  than  private  litigation.  Theoretically,  this  law  re- 
mained in  force  until  the  meeting  of  the  Consultation  at  San  Felipe  de 
Austin,  on  October  1.5, 1835,  and  the  establishment  by  it  of  the  provisional 
government,  consisting  of  a  governor,  lieutenant  governor,  and  council, 
who  were  authorized  to  administer  the  affairs  of  state. 


PROVISIONAL  GOVERNMENT. 

This  consultation  did  not  declare  nor  contemplate  national  indepen- 
dence for  Texas;  it  strove  to  accomplish  the  restoration  of  the  Mexican 
National  Constitution  of  1824.  The  plan  of  privisional  government 
agreed  upon  conferred  almost  absolute  power  upon  its  officers  acting  as 
a  council. 

This  council  was  to  exercise  the  power  of  courts  of  admiralty  and  mari- 
time jurisdiction.  It  was  especially  required  to  organize  a  provisional 
judiciary. 

The  three  articles  relating  to  the  latter,  are  as  follows : 

"Art.  5.  There  shall  be  constituted  a  provisional  judiciary  in  each 
jurisdiction  represented,  or  which  may  hereafter  be  represented  in  this 
House,  to  consist  of  two  judges,  a  first  and  second,  the  latter  to  act 
only  in  the  absence  or  inability  of  the  first,  and  to  be  nominated  by  the 
Council  and  commissioned  by  the  Governor. 

"Art.  6.  Every  judge,  so  nominated  and  commissioned,  shall  have 
jurisdiction  over  all  crimes  and  misdemeanors  recognized  and  known  to 
the  common  law  of  England;  he  shall  have  power  to  grant  writs  of 
habeas  corpus  in  all  cases  known  and  practiced  to  and  under  the  same 
laws;  he  shall  have  power  to  grant  writs  of  sequestration,  attachment,  or 
arrest,  in  all  cases  established  by  the  'Civil  Code'  and  'Code  of  Practice' 


58  DEVELOPMENT   OF   JUDICIAL   SYSTEM   OF   TEXAS. 

of  the  State  of  Louisiana,  to  be  regulated  by  the  forms  thereof;  shall 
possess  full  testamentary  powers  in  all  cases;  and  shall  also  be  made  a 
Court  of  Eecords  for  conveyances  which  may  be  made  in  English,  and 
not  on  stamped  paper ;  and  that  the  use  of  stamped  paper  be,  in  all  cases, 
dispensed  with;  and  shall  be  the  'Notary  Public'  for  their  respective 
municipalities ;  all  office  fees  shall  be  regulated  by  the  Governor  and  the 
Council.  All  other  civil  proceedings  at  law  shall  be  suspended  until  the 
Governor  and  General  Council  shall  otherwise  direct.  Each  municipality 
shall  continue  to  elect  a  sheriff,  alcalde,  and  other  officers  of  Ayuntam- 
ientos. 

"Art.  7.  All  trials  shall  be  by  jury,  and  in  criminal  cases  the  pro- 
ceedings shall  be  regulated  and  conducted  upon  the  principles  of  the 
common  law  of  England;  and  the  penalties  prescribed  by  said  law,  in 
case  of  conviction,  shall  be  inflicted,  unless  the  offender  shall  be  pardoned, 
or  fine  remitted ;  for  which  purpose  a  reasonable  time  shall  be  allowed  to 
every  convict  to  make  application  to  the  Governor  and  Council." 

In  these  ordiances  is  the  first  Texas  recognition  of  the  English  com- 
mon law.  By  them  it  was  adopted  as  the  law  in  all  criminal  cases. 
Judicial  functions  were,  however,  suspended  in  all  civil  matters,  except 
in  cases  of  special  emergency,  and  as  to  these,  the  codes  of  Louisiana — 
another  civil  law  country — were  adopted.  The  Council  was  authorized 
to  order  the  opening  of  the  courts  for  the  trial  of  civil  cases,  if,  in  its 
discretion,  this  should  be  expedient. 

Having  elected  a  Governor  and  Council,  the  Consultation  committed 
the  government  to  them,  and  adjourned  on  November  14,  1835,  to  meet 
on  March  1,  1836.  The  Council  organized  and  took  charge  of  the 
government.  From  time  to  time,  judges  for  the  different  municipalities 
were  elected  and  inducted  into  office.  On  January  16,  1836,  the  Council 
passed  an  act  entitled  "An  Ordinance  and  Decree  for  Opening  the  Several 
Courts  of  Justice,  Appointing  Clerks,  Prosecuting  Attorneys,  and  Defin- 
ing Their  Duties,  etc.,"  which  was  approved  January  22,  1836.  This  is 
too  long  for  insertion.  Its  most  important  provisions  were:  first,  to 
open  the  courts  for  civil  as  well  as  criminal  business ;  second,  to  reiterate 
the  terms  of  the  executive  ordinance,  adopting  the  common  law  of  Eng- 
land in  all  criminal  matters ;  third,  to  specially  provide  for  grand  juries ; 
fourth,  to  continue  the  authority  of  the  Louisiana  codes  in  the  special 
cases  mentioned  in  the  executive  ordinances;  fifth,  to  continue  in  force 
the  former  laws  of  Coahuila  and  Texas  in  all  other  civil  matters;  sixth, 
to  authorize  appeals  from  the  decision  of  the  primary  court  in  any  muni- 
cipality to  the  like  court  in  any  adjoining  municipality;  and,  seventh, 
to  increase  the  jurisdiction  of  alcaldes  to  cases  involving  as  much  as 
fifty  dollars.98-  The  most  striking  peculiarity  of  this  plan  is  the  absence 

9a  Orders  and  Decrees  of  the  General  Council,  p.  135. 


GOVERNMENT   AD   INTERIM.  59 

of  any  court  of  last  resort,  without  which  uniformity  of  decision  is  unat- 
tainable. As  the  plan,  however,  was  only  temporary,  this  omission  was 
no  serious  defect. 

The  Provisional  Government,  though  embarrassed  by  much  internal 
strife,  and  the  disordered  condition  of  the  country,  sustained  itself  against 
the  hostile  invasions  from  Mexico.  Difficulties  increased,  and  the  Council 
decided  that  it  was  proper  that  the  Convention,  which  was  to  assemble 
on  March  1,  1836,  should  be  more  thoroughly  representative  than  the 
adjourned  Consultation,  and  on  December  10,  1835,  it  passed  an  ordin- 
ance providing  for  an  election,  to  be  held  throughout  the  state,  on  Febru- 
ary 1,  1836,  to  select  delegates  to  such  a  body,  to  meet  at  Washington.10 
The  Governor  objected  to  some  of  the  provisions  of  this  act,  and  vetoed 
it,  but  on  the  succeeding  day  it  was  passed  over  his  opposition.11  The 
ordinance  calling  for  this  election  is  not  set  out  in  the  journals  of  the 
Council.  The  preamble  to  the  journal  of  the  Convention  gives  the  date 
of  the  passage  of  the  ordinance  as  December  llth,  and  of  its  approval  by 
the  Governor  as  December  13th.  The  dates  given  herein  are  taken  from 
the  journals  of  the  Council.  The  election  for  delegates  was  duly  held. 


GOVERNMENT  AD  INTERIM. 

The  Convention  assembled  at  Washington  on  March  1,  1836,  and  im- 
mediately organized.  On  the  next  day  it  adopted  the  Texas  Declaration 
of  Independence,  and  proclaimed  the  Republic  of  Texas  a  free,  sovereign, 
and  independent  nation.  In  this  new  nation,  the  Anglo-American 
element  was  overwhelmingly  predominant,  and  its  traditions,  sympathies, 
and  prejudices  were  all  in  favor  of  the  common  law.  One  of  the  griev- 
ances of  the  people  against  the  Mexican  government,  as  set  forth  in  this 
Declaration  of  Independence,  is  in  these  words : 

"It  has  failed  and  refused  to  secure  on  a  firm  basis  the  right  of  trial 
by  jury,  that  palladium  of  civil  liberty,  and  that  only  safe  guarantee  for 
the  life,  liberty,  and  prosperity  of  the  citizen." 

It  was  necessary  to  form  a  Constitution  as  a  basis  of  permanent  na- 
tional existence,  and  as  no  vote  of  the  people  could  be  taken  on  it  then, 
or  in  the  near  future,  and  as  the  provisional  State  government  had  been 
superseded,  it  was  necessary  to  make  provision  for  a  temporary  national 
government.  The  Convention  addressed  itself  vigorously  to  these  several 
tasks,  and  on  March  16th  adopted  an  executive  ordinance  providing  for 
a  Government  ad  interim,  and  on  March  17th  passed  unanimously,  and 
signed  the  Constitution  of  the  Republic  of  Texas;  and,  having  elected 

10  Proceedings  of  the  General  Council,  p.  101. 

11  Id.,  p.  112. 


60  DEVELOPMENT   OF   JUDICIAL   SYSTEM    OF   TEXAS. 

officers  for  the  temporary  government,  adjourned  without  day.  As  men 
who  could  bring  things  to  pass,  the  members  of  that  Convention  stand 
without  peers.  The  swiftness  of  their  work  is  equaled  only  by  its  quality 
and  effectiveness. 

The  executive  ordinance  thus  adopted,  is  as  follows : 

"WHEREAS,  We,  the  people  of  Texas,  through  our  delegates,  in  General 
Convention  assembled,  for  the  purpose  of  framing  a  Constitution,  and 
organizing  a  government  under  that  Constitution,  free,  sovereign,  and 
independent;  and  finding  from  the  extreme  emergency  of  the  case,  and 
our  critical  situation,  that  it  is  a  duty  that  we  owe  to  our  fellow  citizens 
and  ourselves,  to  look  upon  our  present  danger  with  a  calmness  unruffled 
and  a  determination  unsubdued ;  and"  at  the  same  time  to  pursue  a  prompt 
and  energetic  course  for  the  support  of  our  liberty,  and  the  protection  of 
our  property,  and  our  lives ;  therefore, 

"1st.  Resolved,  That  we  deem  it  of  vital  importance  to  forthwith  form, 
organize,  and  establish  a  government  ad  interim,  for  the  protection  of 
Texas,  which  shall  have  full,  ample,  and  plenary  powers  to  do  everything 
which  is  contemplated  to  be  done  by  the  General  Congress  of  the  people, 
under  the  powers  granted  to  them  by  the  Constitution,  saving  and  except- 
ing all  legislative  and  judicial  acts. 

"2nd.  Resolved,  That  said  government  shall  consist  of  a  chief  exe- 
cutive officer,  to  be  styled  the  President  of  the  Eepublic  of  Texas ;  a  Vice- 
President,  Secretary  of  State,  Secretary  of  War,  Secretary  of  the  Navy, 
Secretary  of  the  Treasury,  and  Attorney-General,  whose  salaries  shall  be 
fixed  and  determined  by  the  first  Congress  of  the  Eepublic. 

"3rd.  Resolved,  That  all  questions  touching  the  powers  hereby  con- 
fided to  these  officers  shall  be  decided  by  a  majority  of  said  officers. 

"4th.  Resolved,  That  the  President  be  elected  by  this  convention ;  and 
that  the  candidate  or  the  individual  having  the  majority  of  the  whole 
number  of  votes  given  in,  shall  be,  and  is  hereby,  declared  to  be  duly 
elected. 

"5th.  Resolved,  That  the  Vice-President,  the  aforesaid  Secretaries  and 
the  Attorney  General  be  elected  by  this  Convention,  a  majority  of  the 
whole  number  of  votes  being  requisite  to  a  choice. 

"6th.  Resolved,  That  the  members  of  this  body  vote  for  the  above 
named  officers  viva  voce." 

The  government  thus  inaugurated  was  not  state  but  national,  em- 
bodying all  the  attributes  of  sovereignty.  Actual  hostilities  were  then 
going  on,  and  naturally  more  attention  was  given  to  the  executive  de- 
partment, than  to  either  the  legislative  or  judicial.  The  only  reference 
to  either  of  the  latter  in  the  ordinance  is  to  deny  to  the  government  ad 
interim  the  power  to  exercise  their  respective  functions.  The  change  in 
the  government  growing  out  of  the  substitution  of  national  for  state 
sovereignty  was  fully  recognized  in  the  Constitution  of  the  Republic ;  but 
no  provision  conforming  the  existing  judiciary  to  such  change  was  made 


GOVERNMENT    AD   INTERIM.  61 

in  the  executive  ordinance  for  the  government  ad  interim,  and  President 
Burnet  and  his  cabinet  found  themselves  without  courts  authorized  to 
deal  with  national  or  international  matters.  Several  vessels  were  cap- 
tured, and  it  became  a  very  practical  and  perplexing  question  as  to  who 
should  deal  with  these  prizes,  and  determine  the  questions  of  maritime 
and  international  law  arising.  The  difficulty,  and  the  steps  taken  to 
meet  it,  are  given  quite  graphically  in  the  first  message  of  President 
Burnet  to  the  First  Congress  of  the  Republic,  October  4,  183G,12  as 
follows : 

"The  judicial  department  of  the  government  is  in  a  very  imperfect 
state.  By  the  Constitution,  the  old  system  is  abolished,  and  an  entirely 
new  judiciary  is  created ;  but  it  was  not  considered  advisable  by  the  exe- 
cutive government  to  make  any  further  innovations  upon  the  established 
course  than  necessity  imperatively  demanded.  The  courts  were  closed 
to  civil  business,  and  they  were  thought  to  be  adequate  to  the  conserva- 
tion of  the  public  peace  of  the  country ;  but  I  am  apprehensive  that  that 
opinion  is  illusory,  and  that  a  more  energetic  administration  of  criminal 
law  is  indispensable.  The  increase  is  an  invariable  concomitant  on  in- 
crease of  population. 

"Under  the  existing  system,  there  was  no  tribunal  in  the  country  vested 
with  maritime  jurisdiction,  and  consequently  none  competent  to  adjudi- 
cate questions  arising  from  captures  on  sea.  Some  prizes  had  already  been 
taken,  and  it  was  due  to  the  character  of  our  navy  and  the  country  that 
a  regular  and  lawful  disposition  should  be  made  of  them.  The  govern- 
ment, therefore,  concluded  to  appoint  a  district  judge  for  the  district  of 
Brazos,  within  which  it  was  probable  all  prizes  then  taken  would  be 
brought,  or  to  which  they  could  easily  be  transported.  T  accordingly  ap- 
pointed Benjamin  C.  Franklin,  Esquire,  to  that  office.  It  remains  to 
the  wisdom  of  Congress  to  determine  how  soon  the  new  organization  shall 
be  perfected." 

The  exact  date  of  this  appointment  is  not  given.  This  action  in  effect 
anticipated  the  adoption  of  the  Constitution  of  the  Republic,  and  gave 
Judge  Franklin  the  powers  and  jurisdiction  of  a  district  judge  under  that 
instrument.  His  appointment,  and  the  value  of  his  services,  were  recog- 
nized by  Congress,  which  made  an  appropriation  for  the  payment  of  his 
salary.13 

On  July  23,  1836,  the  government  ad  interim  ordered  an  election  to 
be  held  on  the  first  Monday  in  September  for  the  adoption  or  rejection 
of  the  Constitution  of  the  Republic,  and  the  election  of  officers  thereunder. 
The  Constitution  was  adopted. 

12  Journal  House  of  Representatives  of  First  Congress,  pp.  17  and  18. 
"Acts  of  First  Congress,  p.  276. 


62  DEVELOPMENT   OF   JUDICIAL   SYSTEM   OF   TEXAS. 

KEPTJBLIC. 
JUDICIAL  SYSTEM  UNDER  REPUBLIC. 

The  system  of  courts  ordained  in  the  Constitution  of  the  Eepublic 
consisted  of,  first,  one  Supreme  Court  with  appellate  jurisdiction  only, 
composed  of  a  chief  justice  and  the  several  district  judges  throughout 
the  State,  as  associate  justices ;  second,  district  courts,  which  had  exclusive 
original  jurisdiction  in  all  admiralty  and  maritime  cases,  in  all  cases 
against  ambassadors,  public  ministers,  and  consuls,  of  all  criminal  cases 
punishable  with  death,  and  original  jurisdiction  in  all  civil  cases,  when 
the  matter  in  controversy  amounted  to  one  hundred  dollars,  or  more; 
third,  county  courts,  one  in  each  county;  and  fourth,  justice  courts  in 
the  smaller  .political  subdivisions.  The  jurisdiction  of  the  district  court, 
except  as  indicated  above,  was  not  exclusive,  and  the  jurisdiction  of  the 
inferior  courts  was  not  fixed  by  the  Constitution ;  so  that  the  divisions  of 
jurisdiction  among  these  courts  was  left  largely  to  Congress. 

Congress  at  once  set  to  work  to  bring  governmental  order  out  of  the 
existing  chaos  and  to  provide  for  the  establishment  and  maintenance  of 
all  the  instrumentalities  necessary  to  this  purpose.  The  judicial  depart- 
ment received  its  full  share  of  attention,  and  acts  were  passed  organizing 
and  fixing  the  jurisdiction  of  the  system  of  courts  contemplated  by  the 
Constitution.  As  the  first  Texas  legislation  by  the  Anglo-Americans  on 
this  subject  these  acts  are  important  and  still  interesting. 

Supreme  Court. 

The  act  organizing  the  Supreme  Court  passed  December  15,  1836. 
Some  of  its  sections  are  as  follows : 

"Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Eepresentatives 
of  the  Republic  of  Texas  in  Congress  assembled : 

"That  there  shall  be  established  in  this  Republic  a  court  to  be  styled 
the  Supreme  Court  of  the  Republic  of  Texas,  which  court  shall  consist 
of  one  supreme  judge,  to  be  styled  the  Chief  Justice;  to  be  elected  by 
joint  vote  of  both  houses  of  Congress,  and  such  judges  as  shall  be  elected 
judges  of  district  courts,  who  shall  continue  in  office  during  the  time 
prescribed  by  the  Constitution.  The  Chief  Justice  shall  receive  a  salary 
of  five  thousand  dollars  per  annum,  payable  semi-annually  at  the  treasury 
of  the  Republic. 

"Section  2.  The  Supreme  Court  shall  be  held  annually  at  the  seat 
of  government,  on  the  first  Monday  in  December,  and  a  majority  of  all 
the  judges  shall  be  necessary  to  constitute  such  a  court." 


JUDICIAL   SYSTEM    UNDER   REPUBLIC.  63 

"Section  3.  The  said  Supreme  Court  shall  have  jurisdiction  over,  and 
shall  hear  and  determine  all  manner  of  pleas,  plaints,  motions,  causes 
and  controversies,  civil  and  criminal,  which  may  be  brought  before  it 
from  any  court  in  this  Eepublic,  either  by  appeal  or  other  legal  process, 
and  which  shall  be  cognizable  in  said  Supreme  Court  according  to  the 
Constitution  and  laws  of  this  Republic :  Provided,  That  no  appeal  shall 
be  granted,  nor  shall  any  cause  be  removed  into  the  Supreme  Court  in 
any  manner  whatever  until  after  final  judgment  by  decree  in  the  court 
below,  except  in  cases  particularly  provided  for  by  law." 

"Section  4.  When,  by  appeal  or  in  any  other  manner  permitted  by 
law,  the  judgment,  sentence,  or  decree  of  the  court  below  shall  be  reversed, 
the  Supreme  Court  shall  proceed  to  render  such  judgment,  or  pronounce 
such  sentence  or  decree  as  the  court  below  should  have  rendered  or  pro- 
nounced, unless  it  be  necessary,  in  consequence  of  the  decision  of  the 
Supreme  Court,  that  some  matter  of  fact  be  ascertained,  or  some  damages 
be  assessed  by  a  jury,  or  when  the  matter  to  be  decreed  is  uncertain,  in 
either  of  which  cases  the  suit,  action  or  prosecution,  as  the  case  may  be, 
shall  be  remanded  to  the  court  from  which  it  was  brought  for  a  more 
definite  decision." 

"Section  8.  The  said  court,  or  any  judge  thereof,  in  vacation,  may 
grant  writs  of  injunction,  supersedeas,  and  such  other  writs  as  the  laws 
permit  to  the  judgments  or  decrees  of  the  county  or  district  courts,  on 
such  terms  and  conditions  as  the  laws  may  prescribe  in  cases  of  appeals, 
and  also  to  grant  writs  of  habeas  corpus,  and  all  other  remedial  writs 
and  processes  granted  by  said  judges  by  virtue  of  their  office,  agreeably 
to  the  principles  and  usages  of  law,  returnable  as  the  law  directs,  either 
to  the  Supreme  Court  or  to  any  judge  of  said  court,  as  the  nature  of  the 
case  may  require."14 


District  Courts. 

The  jurisdiction  of  the  district  court  was  defined  by  act  approved 
December  22,  1836,  as  follows : 

"Section  4.  The  district  courts  in  the  several  counties  of  the  Republic, 
shall  have  original  jurisdiction  of  all  suits  of  whatsoever  nature  or 
description,  when  the  matter  in  controversy  shall  be  one  hundred  dollars 
or  upwards,  and  which  are  not  especially  cognizable  in  some  court  estab- 
lished by  law;  and  shall  have  power  to  hear  and  determine  all  prosecu- 
tions in  the  name  of  the  Republic,  by  indictment,  information,  or  present- 
ment for  treason,  murder,  and  other  felonies,  crimes  and  misdemeanors, 
committed  within  their  respective  jurisdictions,  except  such  as  may  be 
exclusively  cognizable  before  a  justice  of  the  peace,  or  in  some  other 

"Acts  of  First  Congress,  p.  79. 


64  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF   TEXAS. 

court  of  this  Republic ;  and  shall,  in  criminal  cases,  have  and  exercise  all 
the  powers  incident  and  belonging  to  a  court  of  oyer  and  terminer  and 
general  jail  delivery,  and  generally  to  do  and  perform  all  other  acts  law- 
fully pertaining  to  a  district  court  of  this  Republic.  And  the  judges  of 
said  courts,  and  each  of  them,  either  in  vacation  or  term  time,  shall  have 
authority  to  grant  writs  of  habeas  corpus,  mandamus,  injunction,  super- 
sedeas,  and  all  other  remedial  writs  known  to  the  law,  not  repugnant  to 
the  Constitution,  returnable  according  to  law,  into  the  Supreme  Court,  or 
either  of  the  said  district  courts,  as  the  case  may  be/' 

The  provisions  relating  to  appeals  was  as  follows : 

"Section  15.  Any  party  may  appeal  from  any  final  judgment  or  de- 
cree of  any  district  court,  during  the  term  at  which  the  decree  was 
rendered,  to  the  Supreme  Court,  provided  the  amount  in  controversy 
amounts  to  three  hundred  dollars,  upon  entering  into  bonds  and  security, 
to  be  approved  of  by  the  court,  in  double  the  amount  of  the  debt  or 
damages  in  the  said  suit,  for  prosecuting  the  same  with  effect,  or  per- 
forming the  judgment,  sentence  or  decree,  which  the  Supreme  Court  shall 
make  or  pass  thereon,  in  case  the  applicant  shall  have  the  case  decided 
against  him."15 


County  Courts. 

The  organization  and  jurisdiction  of  the  county  court  was  provided 
for  by  act  approved  December  20,  1836,  as  follows : 

"Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Republic  of  Texas  in  Congress  assembled : 

"That  there  shall  be  established  in  the  several  counties  of  this  Republic 
an  inferior  court  of  law  which  shall  be  styled  the  county  court  of  the 
county  of  -  — ,  to  be  composed  of  one  chief  justice,  who  shall  be 

elected  by  joint  ballot  of  both  houses  of  Congress,  and  shall  hold  his  office 
for  a  period  of  four  years,  and  two  associate  justices,  who  shall  be  selected 
by  a  majority  of  the  justices  of  the  peace  of  each  county,  from  among 
their  own  body,  at  the  beginning  of  each  and  every  year,  and  the  justices 
so  elected  shall  attend  the  county  courts,  or  pay  a  fine  to  be  assessed  by  the 
chief  justice  not  exceeding  one  hundred  dollars.'' 

"Section  6.  The  several  county  courts  of  this  Republic  shall  have 
original  jurisdiction  of  all  suits  and  actions  for  the  recovery  of  money, 
founded  on  any  bond,  bill,  promissory  note,  or  other  written  contract, 
covenant  or  agreement  whatsoever,  or  any  open  account  where  the  sum 
shall  exceed  one  hundred  dollars,  and  shall  have  concurrent  jurisdiction 
with  the  district  courts  in  such  suits  and  actions:  Provided,  that  no 
suit  relative  to  the  title  of  land  shall  be  tried  and  determined  in  said  court, 

15  Acts  of  First  Congress,  p.  198. 


JUDICIAL   SYSTEM    UNDER   REPUBLIC.  65 

and  generally  to  do  and  perform  all  other  acts,  and  exercise  all  other 
powers,  lawfully  pertaining  to  a  county  court  within  this  Eepublic." 

"Section  24.  The  chief  'justices  of  the  county  court  shall  be  judges  of 
probate  for  their  respective  counties,  shall  take  the  probate  of  wills,  grant 
letters  of  administration  of  the  estates  of  persons  deceased,  who  were  in- 
habitants of  or  residents  in  said  county,  at  the  time  of  their  decease,  shall 
appoint  guardians  to  minors,  idiots,  and  lunatics,  and  in  conjunction  with 
the  associate  justices,  shall  examine  and  settle  the  accounts  of  executors, 
administrators,  and  guardians;  and  said  chief  justice  shall  have  full 
jurisdiction  of  all  testamentary  and  other  matters  appertaining  to  a  pro- 
bate court  within  their  respective  counties." 

In  addition  to  the  jurisdiction  thus  conferred,  these  courts  had  super- 
vision and  control  of  the  business  matters  of  the  county,  roads,  etc..  such 
as  our  county  commissioners  now  have. 

The  provisions  relating  to  appeals  are  as  follows : 

"Section  13.  Any  party  may  appeal  from  any  final  judgment  or  decree 
of  any  county  court,  provided  the  amount  in  controversy  shall  exceed 
two  hundred  dollars,  to  the  district  court  for  said  county,  in  the  same 
manner  and  under  the  same  restrictions  as  provided  in  the  sixteenth 
section  of  'an  act  establishing  the  jurisdiction  and  powers  of  the  district 
court/  and  the  forty-second  section  of  the  aforesaid  act,  shall  apply 
equally  to  the  county  courts,  so  far  as  is  consistent  with  this  act." 

"Section  26.  Any  person  may  appeal  from  any  decision  or  decree  of 
any  court  of  probate,  within  ten  days  after  such  decision  or  decree  shall 
have  been  rendered,  to  the  district  court  of  the  county,  provided  such  ap- 
pellant shall  give  bond  with  good  and  sufficient  security,  to  be  approved 
by  said  court  of  probate,  conditioned  that  said  appellant  shall  prosecute . 
said  appeal  to  effect,  and  perform  the  sentence,  judgment,  or  decree 
which  the  said  district  court  shall  make  therein,  in  case  the  cause  be 
decided  against  said  appellant."16 


Justice's  Courts. 

The  justices  of  the  peace  had  large  power  as  committing  magistrates, 
but  seem  to  have  had  no  power  to  finally  try  any  criminal  case. 

Their  jurisdiction  in  civil  cases  was  as  follows :  "Justices  of  the  peace 
shall  have  jurisdiction  of  all  suits  and  actions  for  the  recovery  of 
money  on  any  account,  bond,  bill,  or  promissory  note,  or  other  written 
contract,  convenant,  or  agreement  whatsoever,  or  for  specfic  articles,  where 
the  sum  demanded  does  not  exceed  one  hundred  dollars."17 

18  Acts  of  First  Congress,  p.  147. 
17  Id.,  p.   141. 
5 — Pleading 


66  DEVELOPMENT    OF   JUDICIAL    SYSTEM    OF    TEXAS. 

Partial  Introduction  of  the  Common  Law. 

Section  13  of  the  judiciary  article  of  the  Constitution  is :  "Congress 
shall,  as  early  as  possible,  introduce  by  statute  the  common  law  of  ling- 
land,  with  such  modifications  as  our  circumstances,  in  their  judgment. 
may  require,  and  in  all  criminal  cases  the  common  law  shall  be  the  rule 
of  decision." 

In  obedience  to  this  mandate,  the  First  Congress  incorporated  in  the 
judiciary  legislation  of  its  first  session,  the  following  article : 

"The  common  law  of  England,  as  now  practiced  and  understood,  shall, 
in  its  application  to  juries  and  to  evidence,  be  followed  and  practiced 
by  the  courts  of  this  Eepublic,  so  far  as  the  same  may  not  be  inconsistent 
with  this  act,  or  any  other  law  passed  by  this  Congress."18 

Thus,  on  these  two  important  branches  of  the  adjective  law,  evidence 
and  trial  by  jury,  the  civil  law  and  prior  statutory  provisions  were  super- 
seded, and  the  rules  of  the  common  law,  to  which  the  citizens  had  been 
accustomed,  were  introduced. 

Pleadings  Under  This  System. 

Other  common  law  methods  of  procedure  were  not  adopted.  The  few 
years  of  their  experience  with  the  administration  of  justice  in  all  civil 
cases  in  one  court,  even  under  the  very  great  disadvantages  then  existing, 
had  demonstrated  to  these  pioneers,  who  were  wise  enough  to  receive  the 
truth  from  any  quarter,  that  the  maintenance  of  separate  courts  of  law 
and  equity  was  not  to  be  desired,  and  they  declined,  therefore,  to  in- 
corporate this  feature  of  the  common  law  into  the  system  they  were 
framing.  In  regard  to  pleading,  the  same  influences  operated.  Neither 
the  system  obtaining  in  courts  of  the  common  law,  nor  in  courts  of  equity, 
was  entirely  adapted  to  the  new  conditions.  The  common  law  system, 
with  its  single  issue,  and  its  forms  of  action,  could  not  be  adjusted  to 
the  procedure  necessary  in  a  court  of  blended  jurisdiction ;  and  the  equity 
system  was  not  in  all  things  suited  to  jury  trials;  besides. 'there -were 
elements  of  formalism  in  each,  which  might  well  be  looked  upon  as 
hindrances,  rather  than  aids,  in  arriving  at  justice.  On  the  other  hand, 
the  pleadings  of  the  civil  law  were  very  simple,  and  admirably  adapted  to 
the  development  of  truth.19 

The  laws  of  Coahuila  and  Texas  regarding  pleadings,  as  before  qxtoted. 
provided  for  a  petition  by  the  plaintiff,  a  contestation  by  the  defendant, 

18  Id.,  p.  157. 

19  The  Laws  of  Las  Siete  Partidas    (translated  by  Lislet  &  Carleton),  Vol.  I, 
law  1,  p.  36;  law  32,  p.  52;  law  31,  p.  51;  law  40,  p.  57;  laws  7,  8,  9,  10,  and 
11,   pp.   70-74. 


JUDICIAL   SYSTEM    UNDER   REPUBLIC.  67 

a  replica  by  the  plaintiff,  and  a  duplica  by  the  defendant.  In  these 
pleadings,  the  parties  were  respectively  allowed  and  required  to  set  forth, 
in  a  plain  and  intelligible  manner,  the  facts  upon  which  they  respectively 
relied  to  sustain  their  positions  before  the  court ;  in  short,  to  state  to  the 
court  the  real  truth  of  the  matter  in  controversy,  so  far  as  they  might 
be  able. 


First  Act  of  Congress  on  Pleading— 1836. 

The  responsibility  of  choosing  between  these  two  systems,  the  common 
law  and  the  Spanish  civil  law,  devolved  primarily  on  Congress.  On 
December  20,  1836,  Congress  passed  an  act  organizing  the  district  courts. 
Its  only  section  referring  to  pleading  is  as  follows :  "It  shall  be  the  duty 
of  the  plaintiff,  or  his  attorney,  in  taking  out  a  writ  or  process,  to  file  his 
petition,  with  a  full  and  clear  statement  of  the  names  of  the  parties, 
whether  plaintiff  or  defendant,  with  the  causes  of  action,  and  the  nature 
of  relief  he  requests  of  the  court." 

This  action  makes  no  mention  of  defensive  pleadings ;  but  -the  courts 
interpreted  it,  in  the  light  of  the  constitutional  provision,  that  old  laws 
should  continue  until  changed  by  Congress,  as  a  practical  adoption  of  the 
system  theretofore  obtaining,  and  so  enforced  it.  The  earliest  mention  by 
our  Supreme  Court  of  "petition  and  answer"  as  a  system  of  pleading,  oc- 
curs in  the  third  paragraph  of  the  opinion  rendered  at  the  January  term, 
1840,  in  Winfred  v.  Gates.19a  This  opinion  declared  that  the 
Spanish  system  of  pleading  was  still  in  force.  The  exact  date  of  the 
opinion  is  not  given ;  but  it  was  the  ninth  case  decided  by  the  Supreme 
Court  of  the  Republic,  at  the  January  term,  1840. 


Legislation  of   184O  Regarding  Common  Law  and   Proceedings. 

The  Fourth  Congress  of  the  Republic,  early  in  its  first  session,  Jan- 
uary 20,  1840,  passed  an  act  entitled: 

"An  Act  to  Adopt  the  Common  Law  of  England,  to  Repeal  Certain 
Mexican  Laws,  and  to  Regulate  Marital  Rights  of  Parties." 

Sections  1  and  2  of  this  act  are  as  follows : 

"Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Republic  of  Tex,as,  in  Congress  assembled,  That  the  common 
law  of  England,  so  far  as  it  is  not  inconsistent  with  the  Constitution  or 
act  of  Congress  now  in  force,  shall,  together  with  such  acts,  be  the  rule 
of  decision  in  this  Republic,  and  shall  continue  in  full  force  until  altered 
or  repealed  by  Congress. 

"Section  2.    Be  it  further  enacted,  That  all  laws  in  force  in  this  Re- 

19aDallam,  364. 


68  DEVELOPMENT   OF    JUDICIAL    SYSTEM    OF   TEXAS. 

public  prior  to  the  1st  of  September,  one  thousand  eight  hundred  and 
thirty-six  (except  the  laws  of  the  Consultation  and  provisional  govern- 
ment now  in  force;  and  except  such  laws  as  relate  exclusively  to  grants 
and  the  colonization  of  land  in  the  State  of  Coahuila  and  Texas,  and 
also,  except  such  laws  as  relate  to  reservations  of  islands  and  lands,  and 
also  of  salt  lakes,  licks  and  springs,  mines,  and  minerals  of  every  descrip- 
tion, made  by  the  General  and  State  Governments)  be,  and  the  same  are 
hereby  repealed." 

The  effect  of  this,  unqualified  by  other  legislation,  would  have  been  to 
annul  all  laws  enacted  prior  to  the  adoption  of  the  Constitution  of  the 
Republic,  except  those  specially  retained,  and  to  substitute  therefor  the 
common  law  and  the  Constitution  and  then  existing  statutes  of  the  Re- 
public, and,  as  Congress  had  not  passed  any  general  practice  act,  the  com- 
mon law  system  would  have  been  in  force.  This  was  prevented,  however,  by 
passing  at  the  same  session  of  Congress  an  act  entitled,  "An  Act  to  Regu- 
late  Proceedings  in  Civil  Suits."  This  was  approved  February  5.  1840. 

Section  1  is  as  follows : 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  Re- 
public of  Texas,  in  Congress  assembled,  That  the  adoption  of  the  com- 
mon law  shall  not  be  construed  to  adopt  the  common  law  system  of  plead- 
ing; but  the  proceedings  in  all  civil  suits  shall,  as  heretofore,  be  con- 
ducted by  petition  and  answer;  but  neither  petition  nor  answer  shall  be 
necessary  in  a  cause  to  recover  money  before  a  justice  of  the  peace." 

A  portion  of  section  12  is  as  follows : 

"In  every  civil  suit,  in  which  sufficient  matter  of  substance  may  appear 
upon  the  petition,  to  enable  the  court  to  proceed  upon  the  merits  of  the 
cause,  the  suit  shall  not  abate  for  want  of  form.  The  court  shall,  in 
the  first  instance,  endeavor  to  try  each  cause  by  the  rules  and  principles 
of  law.  Should  the  cause  more  properly  belong  to  equity  jurisdiction, 
the  court  shall,  without  delay,  proceed  to  try  the  same  according  to  the 
principles  of  equity.  *  *  *  Provided,  nothing  herein  contained 
shall  be  so  construed  as  to  prejudice  the  right  of  the  parties  to  a  trial  by 
jury."20 

This  is  the  first  reference  in  Texas  to  the  difference  between  law  and 
equity ;  but  it  must  be  noticed  that  there  is  no  separation  of  the  juris- 
dictions; both 'law  and  equity  are  to  be  administered  by  the  same  court  in 
the  same  cause,  and  trial  by  jury  is  not  to  be  precluded  by  the  exercise 
of  equity  powers  by  the  court. 

Congress,  at  the  same  season,  passed  an  act  that  laws  passed  by  it 
should  not  go  into  effect  until  forty  days  after  adjournment,  unless  other- 
wise expressly  provided.21  This  act  had  such  a  provision,  but  there  was 
none  in  either  the  act  adopting  the  common  law,  or  the  one  denying  its 
application  to  our  system  of  pleading.  These  two  acts,  therefore,  went 
into  effect  at  the  same  time,  forty  days  after  adjournment  of  Congress, 

20  Laws  of  Fourth  Congress,  p.  88 
"Id.,  p.  6. 


JUDICIAL    SYSTEM    UNDER   EEPUBLIC.  69 

and  must  be  construed  as  parts  of  the  same  act.  Hence,  the  common  law 
system  of  pleading  in  civil  suits  did  not  obtain  in  Texas  at  any  time 
under  these  acts. 


Decisions  of  Supreme  Court  of  Republic  Regarding  Pleading. 

In  the  case  of  Fowler  v.  Poor,  decided  by  the  Supreme  Court  of  the 
Republic,  January  term,  1841,21a  this  language  occurs: 

"Our  system  of  proceedings  in  civil  suits  differs  from  that  known  in 
England,  and  adopted  in  most  of  the  States  in  the  United  States.  *  *  * 
The  mode  of  conducting  proceedings  in  civil  suits  by  petition  and 
answer,  is  so  highly  appreciated  by  the  legislative  power  of  this  Eepublic, 
that  at  the  last  session  of  Congress,  it  was  expressly  enacted,  that  "the 
adoption  of  the  common  law  shall  not  be  construed  to  adopt 
the  common  law  system  of  pleading,  but  the  proceedings  in  all 
civil  suits  shall,  as  heretofore,  be  conducted  by  petition  and  answer." 
Here  is  strong  legislative  declaration  that  the  proceedings  in  civil  suits 
had  been  heretofore  commenced  by  petition,  and  that  they  shall  be  con- 
ducted in  the  same  manner  for  the  future." 

In  Hamilton  v.  Blank,2  lb  decided  at  the  June  term,  1844,  the 
Supreme  Court  says:  "The  object  of  our  statutes  on  the  subject  of 
pleading,  is  to  simplify  as  much  as  possible  that  branch  of  the  proceedings 
in  courts  which,  by  the  ingenuity  and  learning  of  both  common  and  civil 
law  lawyers  and  judges,  has  become  so  refined  in  its  subtleties  as  to  sub- 
stitute in  many  instances  the  shadow  for  the  substance.  Our  statute 
requires  at  the  hands  of  the  petitioner  to  a  court  of  justice  only  a  state- 
ment of  the  names  of  the  parties  plaintiff  and  defendant,  a  full  and 
fair  exposition  of  his  cause  of  action,  and  finally  the  relief  which  he  asks." 

Many  other  interesting  cases  could  be  given  from  the  decisions  of  the 
Supreme  Court  of  the  Republic  to  show  that  the  practical  interpretation 
of  the  statutes  under  consideration  was  that  the  common  law  system  of 
pleading  was  never  in  force  in  Texas,  and  that  the  purpose  of  the  law- 
makers was  to  eliminate  as  far  as  possible  all  technicalities  and  useless 
forms,  and  require  only  a  full  and  fair  statement  of  the  facts  upon  which 
the  party  relied,  and  the  relief  sought  from  the  court,  supplemented  by  a 
few  indispensable  matters,  such  as  names  and  residences  of  parties,  etc., 
to  enable  the  court  to  act  intelligently.  This  is  substantially  the  Texas 
system  of  pleading  to-day. 

There  were  no  material  changes  made  during  the  Republic  in  the  ju- 
dicial system  thus  established.  In  dealing  with  this  period  of  our  history, 
we  must  not  lose  sight  of  the  important  fact  that  at  his  time  the  Su- 
preme Court  consisted  of  a  chief  justice  and  the  district  judges  sitting  to- 

• la  Dallam,  403. 
»lb  Dallam,  587. 


70  DEVELOPMENT   OF    JUDICIAL    SYSTEM    OF   TEXAS. 

gether.  This  plan,  impracticable  under  most  circumstances,  was  of  great 
value  then ;  it  was  the  unifying  and  harmonizing  element  in  the  system. 
The  law  of  Coahuila  and  Texas  were  in  a  language  unknown  to  most  of 
the  judges,  and  to  a  large  extent  inaccessible  to  the  few  that  could  have 
translated  them.  The  enactments  of  Congress  on  methods  of  procedure 
were  meagre,  and  the  meeting  and  interchanging  of  views  on  these  mat- 
ters by  the  several  district  judges,  when  assembled  for  the  purpose  of 
holding  the  Supreme  Court,  must  have  been  salutary  in  its  influence, 
and  have  had  a  strong  tendency  to  introduce  the  same  procedure  in  all 
courts. 


TEXAS  AS  A  STATE. 

During  the  year  1845  it  was  definitely  determined  that  the  Eepublic 
of  Texas  should  surrender  its  nationality,  and  take  a  place  as  a  State  in 
the  Federal  Union.  A  State  Constitution  looking  to  this  end  was  pre- 
pared and  adopted;  State  officers  were  elected;  and  on  February  16,  1846, 
the  first  State  Legislature  assembled,  the  State  government  was  organ- 
ized, President  Jones  retired  and  Governor  Henderson  was  inaugurated, 
the  Eepublic  of  Texas  passed  into  history,  and  in  her  stead  the  State  of 
Texas  became  a  member  of  the  United  States  of  America.22 

The  formative  period  of  her  history  had  passed.  Though  there  have 
been  many  modifications  made  from  time  to  time  to  adjust  herself  to  the 
varying  conditions  of  her  development,  the  fundamental  ideas  of  her 
jurisprudence  have  since  remained  unchanged. 

JUDICIAL  SYSTEM  UNDER  CONSTITUTION  1845. 

In  the  State  government  thus  established  the  judiciary  article  of  the 
Constitution  of  1845  became  the  basis  of  the  Texas  judicial  system. 

The  system  thus  established  consisted  of  a  Supreme  Court,  district 
courts,  county  courts,  and  justices'  courts.  The  jurisdiction  of  these 
courts  in  some  instances  differed  materially  from  that  now  exercised  by 
tribunals  of  same  designations. 

The  jurisdiction  of  the  Supreme  Court  remained  practically  as  under 
the  Eepublic.  In  had  appellate  jurisdiction  only,  and  was  the  court  of 
last  resort  in  all  cases  both  civil  and  criminal. 

The  most  radical  change  as  to  it  was  with  reference  to  the  judges  com- 
posing the  court.  It  w>as  no  longer  to  consist  of  a  chief  justice  and  several 
district  judges  sitting  in  bane,  but  of  a  chief  justice  and  two  associate 
justices  appointed  by  the  Governor  with  approval  of  the  senate,  who 

^Cocke  v.  Calkin  &  Co.,  1  Texas,  541;  Calkin  v.  Cocke,  14  Howard,  235;  Lee 
v.  King,  21  Texas,  577. 


JUDICIAL    SYSTEM   UNDER    CONSTITUTION    1845.  71 

had  no  official  duties  except  as  members  of  that  tribunal.  This  change 
was  necessary  because  of  the  increase  in  population  and  business.  The 
interests  of  the  State  required  a  very  considerable  increase  in  the  number 
of  district  judges  and  also  longer  service  by  them  in  discharge  of  their 
duties  in  their  several  districts.  The  number  of  cases  was  also  increasing 
in  the  Supreme  Court  so  as  to  necessitate  more  frequent  and  longer 
sessions  by  it.  It  was  therefore  impracticable  for  the  same  persons  to  fill 
positions  in  both  courts. 

The  powers  and  jurisdiction  of  the  district  courts  is  fixed  in  section 
10  of  the  judiciary  article  as  follows : 

"The  district  court  shall  have  original  jurisdiction  of  all  criminal 
cases,  of  all  suits  in  behalf  of  the  State  to  recover  penalties,  forfeitures, 
and  escheats,  and  of  all  cases  of  divorce,  and  of  all  suits,  complaints, 
and  pleas  whatever,  without  regard  to  any  distinction  between  law  and 
equity,  when  the  matter  in  controversy  shall  be  valued  at,  or  amount  to 
one  hundred  dollars,  exclusive  of  interest ;  and  the  said  courts,  or  judges 
thereof,  shall  have  power  to  issue  all  writs  necessary  to  enforce  their 
own  jurisdiction  and  to  give  them  a  general  superintendence  and  con- 
trol over  inferior  jurisdictions.  And  in  the  trial  of  all  criminal  cases, 
the  jury  trying  the  same  shall  find  and  assess  the  amount  of  punishment 
to  be  inflicted  or  fine  imposed;  except  in  capital  cases,  and  where 
the  punishment  or  fine  imposed  shall  be  specifically  imposed  by  law." 

In  this  section  we  find  the  first  constitutional  reference  to  any  dis- 
tinction between  law  and  equity.  Up  to  this  time  this  peculiarity  of  the 
common  law  had  been  continuously  ignored,  except  in  section  12,  Act 
of  February  5,  1840,  heretofore  quoted,  and  in  that  the  recognition  was 
partial  and  designed  to  regulate  the  exercise  of  both  jurisdictions  by  the 
same  court  rather  than  to  adopt  and  enforce  the  differences  between  the 
two. 

This  first  constitutional  reference  to  this  distinction  is  not  to  adopt 
or  perpetuate  it,  but  to  deny  its  existence  and  prevent  any  attempt  at 
its  recognition  either  by  the  Legislature  or  courts  of  the  State.  A  sim- 
ilar provision  has  been  made  in  every  Constitution  of  the  State  since 
adopted. 

As  we  have  seen  the  common  law  of  England  was  adopted  as  the  gen- 
eral rule  of  decision  in  Texas  by  Act  of  January  20,  1840,  and  continu- 
ously from  that  date  the  Texans  have  been  an  English-speaking  people 
having  the  common  law  as  the  basis  of  their  jurisprudence,  but  yet  deny- 
ing the  arbitrary  distinction  made  by  that  system  between  law  and 
equity,  and  since  1845  have  by  constitutional  provision  forbidden  the 
Legislature  to  incorporate  such  distinction  into  its  laws.  From  January 
20,  1840,  to  November,  1846,  the  date  of  the  adoption  by  the  State  of 
New  York  of  a  new  Constitution  abolishing  this  distinction  it  seems  to 
have  been  the  only  government  of  which  this  was  true. 


72  DEVELOPMENT    OF   JUDICIAL    SYSTEM    OP   TEXAS. 

District  Court  Under  Constitution  of  1845. 

The  first  Legislature  of  the  State  of  Texas  made  speedy  and  full  pro- 
vision for  the  organization  of  the  judicial  department  of  the  govern- 
ment as  contemplated  by  the  Constitution.  On  May  11,  1846,  it  adopted 
an  act  to  organize  the  district  courts  and  define  their  powers  and  juris- 
dictions.23 Sections  2,  3,  4  and  7  of  this  act  are  as  follows : 

"Sec.  2.  Be  it  further  enacted,  that  the  judges  of  the  district  courts 
shall  by  virtue  of  their  offices,  be  conservators  of  the  peace,  throughout 
the  State,  and  the  district  courts  shall  have  original  jurisdiction  of  all 
criminal  cases,  of  all  suits  in  behalf  of  the  State,  to  recover  penalties, 
forfeitures  and  escheats,  and  of  all  suits  against  the  State,  which  are  or 
may  be  allowed  by  law,  and  shall  have  power  to  hear  and  determine  all 
prosecutions  in  the  name  of  the  State,  by  indictment,  information  or 
presentment  for  treason,  murder  or  other  felonies,  crimes  and  misde- 
meanors, committed  within  their  respective  jurisdictions,  except  such  as 
may  be  exclusively  cognizable  before  justices  of  the  peace  or  other 
courts  of  the  State,  and  shall,  in  criminal  cases,  have  and  exercise  all 
the  powers  incident  and  belonging  to  courts  of  over  and  terminer,  and 
general  jail  delivery;  also  of  all  suits  for  the  recovery  of  land,  of  all 
cases  of  divorce  and  alimony,  and  of  all  suits,  complaints  and  pleas  what- 
ever, without  regard  to  any  distinction  whatever  between  law  and  equity, 
when  the  matter  in  controversy  shall  be  valued  at  or  amount  to  one  hun- 
dred dollars  or  more,  exclusive  of  interest,  and  generally  to  do  and  per- 
form all  other  acts  pertaining  to  courts  of  general  jurisdiction. 

"Sec.  3.  Be  it  further  enacted,  that  the  district  courts  shall  have  and 
exercise  appellate  jurisdiction  and  general  control  over  such  inferior 
tribunals  as  have  been  or  may  be  established  in  each  county,  for  appoint- 
ing guardians,  granting  letters  testamentary,  and  of  administration 
for  settling  the  accounts  of  executors,  administrators  and  guardians, 
and  for  the  transaction  of  business  appertaining  to  estates  and  original 
jurisdiction  in  probate  matters,  only  in  cases  where  the  judge  or  clerk 
of  probate  is  interested." 

"Sec.  4.  Be  it  further  enacted,  that  the  judges  of  the  district  courts, 
and  each  of  them,  either  in  vacation  or  term  time,  shall  have  authority 
to  grant  on  petition  to  them  therefor,  writs  of  habeas  corpus,  manda- 
mus,  injunction,  sequestration,  error  and  supersedeas,  and  all  other 
remedial  writs,  known  to  the  law,  returnable  according  to  law :  provided, 
that  no  mandamus  shall  be  granted  on  an  ex  parte  hearing,  and  any 
peremptory  mandamus  granted  without  notice,  shall  be  deemed  void: 
and  further  provided,  that  all  writs  of  mandamus,  sued  out  against  the 
heads  of  any  of  the  department  or  bureaux  of  government,  shall  be  re- 

23  Laws  of  the  First  Legislature,  200. 


JUDICIAL   SYSTEM   UNDER   CONSTITUTION-    1845.  73 

turnable  before  the  district  court  of  the  county  in  which  the  seat  of  gov- 
ernment may  be." 

"Sec.  7.  Be  it  further  enacted,  that  the  district  judges,  when  the  ap- 
propriate relief  is  prayed  for,  may  grant  all  such  orders,  writs  or  other 
process  necessary  to  obtain  such  relief,  and  may  also,  so  frame  the  judg- 
ments of  the  courts  as  to  afford  all  the  relief  which  may  be  required  by 
the  nature  of  the  case,  and  which  is  granted  by  courts  of  law  or  equity." 


Inferior  Courts  Under  This  Constitution. 

Justices'  courts  were  established  and  given  jurisdiction  in  civil  mat- 
ters involving  one  hundred  dollars  or  less,  authority  to  try  which  was 
not  conferred  exclusively  bn  the  district  court.  These  courts  also  had 
jurisdiction  of  a  few  misdemeanors  mainly  breaches  of  the  peace  and 
minor  offenses  against  the  person  in  which  the  punishment  could  not 
exceed  a  fine  of  $50.  The  power  of  the  justices  of  the  peace  as  commit- 
ting magistrates  was  quite  extensive.24 

A  probate  court,  consisting  of  one  judge,  was  established  in  each 
county,  upon  which  was  conferred  all  powers  ordinarily  exercised  by 
courts  of  that  class.25 

Under  this  Constitution  there  was  no  county  court  with  jurisdiction 
to  try  cases.  A  tribunal  designated  "the  county  court,"  composed  of 
one  chief  justice  and  four  commissioners,  was  created  in  each  county. 
Its  jurisdiction  extended  to  all  matters  of  county  business  and  finances. 
It  had  no  power  to  try  causes  between  individuals.26 


Legislative  Power  Over  These  Courts. 

In  the  act  organizing  justices'  courts  (section  20)  the  Legislature  de- 
clared that  from  final  judgments  of  justices'  courts  appeal  should  lie  to 
the  district  courts ;  and  in  an  act  hereafter  referred  to,  regulating  prac- 
tice in  the  latter,  ample  provision  was  made  for  the  exercise  of  such 
appellate  jurisdiction  by  them.  Under  these  statutory  enactments  for 
several  years  appeals  were  actually  taken  from  the  justices'  courts  to  the 
district  courts  and  the  cases  were  retained  and  tried  there.  In  1849, 
in  the  case  of  Titus  v.  Latimer,27  the  point  was  made  that  as  the  district 
court  was  created  by  the  Constitution  and  its  jurisdiction  defined 
therein,  the  Legislature  had  no  power  to  change  such  jurisdiction,  either 

24  Laws  of  the  First  Legislature,  298  et  seq. 

25  Laws  of  the  First  Legislature,  308  et  seq. 

26  Laws  of  the  First  Legislature,  p.  333. 

27  5  Texas,  433. 


74  DEVELOPMENT   OF   JUDICIAL   SYSTEM    OF    TEXAS. 

by  adding  to  or  taking  from ;  and,  as  appellate  jurisdiction  in  cases  from 
the  justices'  court  was  not  given  to  the  district  court  by  the  Constitution, 
the  statutes  attempting  to  confer  it  were  void.  The  court  was  divided 
in  its  opinion  on  the  question,  but  the  majority,  Hemphill,  C.  J..  and 
Lipscomb,  A.  J.,  sustained  the  point,  Wheeler,  A.  J.,  dissenting.  The 
opinion  of  the  court  was  delivered  by  Judge  Lipscomb.  After  stating 
the  case,  he  says : 

"The  importance  of  the  question  is  sensibly  felt  and  fully  and  frankly 
acknowledged ;  and  it  is  a  matter  of  serious  regret  that  it  should  be  sud- 
denly sprung  upon  the  court  without  the  benefit  of  having  it  discussed 
at  the  bar.  It  is  now  nearly  four  years  since  the  Legislature  at  its  first 
session,  proceeded  to  organize  justices'  courts  and  define  their  jurisdic- 
tion, and,  among  other  things,  gave  the  right  of  appeal,  as  a  matter  of 
course,  from  their  decisions  to  the  district  'courts.  The  same  Legis- 
lature, at  the  same  session,  passed  an  act  organizing  the  district  courts, 
and  another  regulating  judicial  proceedings  in  the  district  courts.  In 
the  last,  the  manner  in  which  appeals  from  the  justices  of  the  peace 
are  to  be  tried  is  defined  and  expressly  provided  for.  In  all  the  interven- 
ing time  since  those  acts  were  passed  they  have  been  acted  on  and  judici- 
ally recognized  as  valid  without  having  ever  before  been  questioned. 
If,  however,  they  are  repugnant  to  the  Constitution  and  could  not  give 
jurisdiction,  neither  the  lapse  of  time  nor  the  practice  of  the  courts  can 
vindicate  the  exercise  of  such  jurisdiction. 

"Justices  of  the  peace  and  other  inferior  tribunals  are  recognized  by 
the  Constitution ;  the  extent  of  their  jurisdiction,  however,  is  left  wholly 
to  the  Legislature.  But  the  district  court  and  the  Supreme  Court,  both 
as  to  their  institution  and  jurisdiction,  are  essentially  the  creatures  of 
the  Constitution.  On  those  courts  the  Legislature  can  neither  confer 
nor  take  away  jurisdiction.  If  the  jurisdiction  given  by  the  Constitu- 
tion can  not  be  exercised  because  the  mode  has  not  been  expressly  pro- 
vided for  in  the  fundamental  law  of  their  creation,  it  would  be  com- 
petent for  the  Legislature  to  regulate  the  manner  in  which  it  should 
be  exercised.  But  if  the  mode  had  been  expressed  contemporaneously, 
and  by  the  same  authority  that  created  the  jurisdiction,  it  woula  not 
be  competent  for  the  Legislature  to  direct  a  different  mode.  The 
Supreme  Court  is  exclusively  a  court  of  appellate  jurisdiction.  The 
Constitution  has  conferred  on  it  no  original  jurisdiction,  nor  can  the 
Legislature  confer  any  such,  because  it  has  been  created  by  the  Consti- 
tution an  appellate  tribunal  only.  The  district  court  is  a  court  of  orig- 
inal jurisdiction,  and  this  original  jurisdiction  is  not  derived  from  nor 
dependent  on  the  Legislature.  All  that  can  be  done  by  the  Legislature 
is  to  regulate  the  manner  in  which  its  jurisdiction  shall  be  exercised. 
If  the  Constitution  has  not  given  it  appellate  powers  it  is  not  competent 
for  the  Legislature  to  do  so.  There  is  a  very  obvious  distinction,  to  my 
mind,  between  controlling  an  inferior  jurisdiction  and  the  exercise  of  an 


JUDICIAL    SYSTEM    UNDER    CONSTITUTION    1845.  75 

appellate  power :  the  former  can  be  exerted  to  prevent  action ;  the  latter 
requires  the  act  to  be  done  before  it  can  be  appealed  from.  Hence,  when 
the  tenth  section  of  the  fourth  article  of  the  Constitution  confers  the 
powers  on  the  district  court  and  the  judges  thereof  to  'issue  all  writs 
necessary  to  enforce  their  own  jurisdiction  and  to  give  them  a  general 
superintendence  and  control  over  inferior  jurisdictions/  it  does  not.  from 
necessity  or  by  reasonable  inference,  give  them  appellate  jurisdiction. 
If  it  was  intended  to  withhold  general  appellate  jurisdiction,  and  not  to 
give  a  control  over  inferior  jurisdiction,  it  would  have  been  difficult  to 
have  expressed  that  object  in  more  appropriate  terms  than  have  been 
used.  A  control  of  the  acts  of  those  tribunals  is  expressly  given  by 
the  issuance  of  writs  very  familiar  to  courts  of  general  original  juris- 
diction. The  writs  of  certiorari,  mandamus,  quo  warranto,  injunction 
and  prohibition,  would  afford  ready  means  of  exercising  control.  Had 
it  been  intended  that,  in  addition  to  the  use  of  these  writs,  a  general 
appellate  jurisdiction  should  be  exercised,  it  is  certainly  most  probable 
that  it  would  have  been  so  expressed  in  the  tenth  section  as  it  is  in 
the  fifteenth  section,  in  giving  jurisdiction  over  the  probate  court. 

"Believing  that  the  power  to  give  jurisdiction  by  the  act  of  the  Leg- 
islature can  not  be  derived  from  the  Constitution,  there  is  no  error  in 
the  decision  of  the  court  below  in  dismissing  the  appeal.  Judgment 
affirmed." 

Thus  early  in  the  history  of  our  State  were  adopted  and  applied  rules 
of  strict  construction  of  constitutional  grants  of  power  to  the  several 
courts  created  by  organic  law.  These  rules  were  most  rigidly  and  con- 
sistently enforced  in  interpreting  all  our  Constitutions  up  to  the  amend- 
ments of  1891,  and  notwithstanding  the  evident  intent  to  avoid  them 
manifested  in  those  amendments,  their  influence  continues  to  be  felt 
in  some  of  the  courts  now  existing. 


Pleadings  Under  Practice  Act  of  1846. 

The  Legislature  at  this  first  session  also  gave  special  attention  to  mat- 
ters of  practice  in  the  courts,  and  passed  an  act,  approved  May  13,  1846, 
to  regulate  proceedings  in  the  district  courts,  which  comprised  158 
sections,  and  covered  the  whole  field  of  procedure  in  said  courts,  enumer- 
ating and  repealing  by  name  every  former  provision  relating  to  practice 
in  all  civil  suits,  but  not  repealing  the  act  adopting  the  common  law  as 
to  evidence  and  juries  except  so  far  as  in  conflict  with  it.28 
The  requirements  of  this  act  as  to  pleading  are  as  follows : 
"Sec.  3.     Be  it  further  enacted,  that  all  civil  suits  in  the  district  court 
shall  be  commenced  by  petition  filed  in  the  office  of  the  district  court." 

28  Laws  of  the  First  Legislature,  363. 


76  DEVELOPMENT   OF   JUDICIAL    SYSTEM    OF   TEXAS. 

"Sec.  5.  Be  it  further  enacted,  that  the  petition  may  be  filed  by  the 
plaintiff  or  attorney  and  shall  set  'forth  clearly  the  names  of  the  parties 
and  their  residences,  if  known,  with  a  full  and  clear  statement  of  the 
cause  of  action  and  such  other  allegations  pertinent  to  the  case  as  he 
may  deem  necessary  to  sustain  the  suit,  and  also  a  full  statement  of  the 
nature  of  the  relief  requested  of  the  court." 

"Sec.  29.  Be  it  further  enacted,  that  the  defendant  in  his  answer 
may  plead  as  many  several  matters  whether  of  law  or  fact  as  he  shall 
think  necessary  for  his  defense  and  which  may  be  pertinent  to  the  case : 
provided,  that  he  shall  file  them  at  the  same  time  and  in  due  order  of 
pleading." 

"Sec.  32.  Be  it  further  enacted,  that  all  pleas  filed  shall  be  taken  up 
and  disposed  of  by  the  court  in  due  order  of  pleading  under  the  direction 
of  the  court." 


Early  Decisions  of  State  Supreme  Court  on  Pleading. 

That  the  full  force  of  this  law  may  be  appreciated,  it  is  well  to  con- 
sider  the  construction  placed  by  our  Supreme  Court  upon  the  prior 
acts  of  Congress  with  reference  to  procedure,  and  particularly  upon  the 
words  "petition  and  answer"  as  occurring  therein.  The  case  of  Under- 
wood v.  Parrott29  was  an  action  brought  in  the  district  court,  appar- 
ently before  the  adoption  of  the  Constitution  of  1845,  though  the  de- 
cision of  the  Supreme  Court  was  not  rendered  until  the  December  term 
1847.  In  this  case  Judge  Wheeler  speaking  for  the  court  says : 

"The  act  of  1840,  'to  regulate  proceedings  in  civil  suits,'  4  Stat.,  88, 
declares  that,  'the  adoption  of  the  common  law  shall  not  be  so  construed 
as  to  adopt  the  common  law  system  of  pleading  but  the  proceedings  in 
all  civil  suits  shall,  as  heretofore,  he  conducted  by  petition  and  answer.' 

"This  provision  was  evidently  intended  not  to  prescribe  the  rules, 
but  to  designate  the  system  of  pleading  to  be  observed  in  our  courts. 
The  attention  of  the  Legislature  was  directed  to  the  fact  that  different 
systems  of  conducting  the  allegations  of  the  parties  prevailed  in  different 
countries  and  in  different  jurisdictions  in  the  same  country.  They  had 
adopted  as  the  body  of  our  municipal  law  the  common  law  of  England, 
but' they  were  averse  to  the  system  of  pleading  observed  in  the  forums 
of  that  country;  and  recurring  to  the  fact  that  a  different  system,  pre- 
vailed here  with  which  the  courts  and  bar  were  supposed  to  be  familiar, 
and  which  was  supposed  to  be  more  simple  and  equitable,  and  better 
adapted  than  the  English  system  to  attain  the  true  and  ostensible  ob- 
ject of  all  systems  of  pleading — a  just  decision  upon  the  merits  of  the 
matter  in  controversy — they  determined  to  retain  the  existing  system. 

29  2  Texas,  178. 


JUDICIAL    SYSTEM   UNDER    CONSTITUTION    1845.  77 

Hence  the  antithesis  which  the  last  member  of  the  sentence  presents 
to  the  first;  the  words  'petition  and  answer'  being  used  in  opposition 
to  'the  common  law  system  of  pleading/  not  to  signify  the  stages  of 
pleading  to  which  these  words  give  names,  but  to  designate  the  system 
to  which  they  belong.  And,  doubtless,  to  secure  one  uniform  system 
of  conducting  the  allegations  of  the  parties,  as  well  as  to  retain  for  that 
purpose  the  then  existing  system,  they  declare  that  the  proceedings  'in 
all  civil  suits,'  whether  they  would  have  appertained  to  the  common  law 
or  chancery  jurisdiction  in  England,  shall  as  heretofore,  be  conducted 
by  petition  and  answer.'  These  words  then  were  not  intended  as  a  re- 
striction or  limitation  of  the  pleadings  to  the  answer,  but  as  the  designa- 
tion of  a  system  of  pleadings — that  being  the  subject  present  to  the 
mind  of  the  Legislature,  who  were  not  treating  of  a  declaration  or  plea, 
or  of  a  petition  or  answer,  but  of  the  remedial  systems  in  which  those 
terms  are  employed,  and  which  they  describe;  and  they  used  them  not 
to  denote  a  prescribed  formulary,  but  as  indicative  of  their  intention  to 
retain  the  then  existing  system  in  opposition  to  the  common  law  and 
chancery  systems  of  pleadings  in  England.  They  retained  the  existing 
system  without  alteration,  'to  be  conducted,'  in  their  own  language,  'as 
heretofore/ 

"The  inquiry  then  resolves  itself  into  this :  was  a  replication  recognized 
by  the  laws  anterior  to  the  cited  provision  ?  By  reference  to  the  laws  of 
the  State  of  Coahuila  and  Texas,  decree  277,  section  6,  article  101,  page 
266  of  the  laws  and  decrees,  it  will  be  found  that  the  former  laws  upon 
the  subject  did  permit  the  parties  to  employ  the  replica  and  duplica, 
answering  to  the  replication  and  rejoinder  of  the  English  system:  but 
to  these  they  restricted  the  pleadings.  And  although  the  body  of  the 
former  laws  was  repealed  at  the  period  of  the  adoption  of  the  common 
law,  4  Stat.  pp.  3,  4,  yet  the  same  Legislature  retained  the  system  of 
pleading  in  opposition  to  that  of  the  common  law.  Id.,  88,  sec.  1.  That 
it  is  allowable,  therefore,  to  carry  to  pleadings  beyond  the  answer,  I 
can  not  doubt.  In  a  case  like  the  present,  to  reply  the  facts  intended 
to  be  relied  on  in  evidence  to  repel  the  defense  disclosed  by  the  answer, 
would  seem  most  consonant  to  principle  and  convenient  in  practice.  If 
the  party  must  apprise  the  court  orally  of  the  facts  intended  to  be 
relied  on  before  he  can  insist  upon  the  introduction  of  his  evidence, 
why  not  put  them  in  writing  upon  the  record,  not  only  for  the 
information  of  the  court,  but  to  apprise  the  opposite  party  of  the 
proofs  he  must  be  prepared  to  meet.  This  would  seem  more  consistent 
with  fairness  and  justice  than  to  permit  a  party  to  assume  mentally 
the  basis  of  his  proofs,  and  disguise  and  conceal  them  for  the  purpose 
of  surprise  and  undue  advantage.  It  would  prevent  confusion  and  em- 
barrassment, surprise  and  injustice,  in  the  district  courts,  and  would 
present  the  case  in  a  far  more  intelligible  form  for  revision  here.  It 
would  disencumber  the  record  of  a  mass  of  matter  embodied  in  bills 


78  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF    TEXAS. 

of  exceptions  and  statements  of  facts;  for  it  is  only  by  these,  in  the 
absence  of  pleadings,  that  the  matters  arising  subsequent  to  the  answer 
can  be  presented  here  for  revision." 

At  the  same  session  of  the  Supreme  Court,  the  case  of  Coles  v.  Kelsey 
was  decided,  Justice  Lipscomb  rendering  the  opinion.30  In  it  he  uses 
this  language: 

"I  do  not  believe,  however,  that  on  this  subject  we  can  with  safety 
rely  on  common  law  rules  of  pleading,  as  our  system  of  bringing  suits 
by  petition  bears  no  analogy  to  the  common  law  practice.  But  there 
is  a  most  striking  similarity  in  our  forms  to  the  English  bill  and  answer 
in  chancery,  so  much  so  as  to  leave  no  doubt  of  their  kindred  origin. 
They  are  both  derived  from  the  Roman  law,  out  of  which  grew  up  the 
civil  law,  which  now  prevails  all  over  continental  Europe  with  various 
modifications ;  ours  came  to  us  through  the  laws  of  Spain.  Judge  Story 
says  that  equity  pleadings  were  borrowed  from  the  civil  law,  or  from  the 
canon  law,  which  is  a  derivative  from  the  civil  law,  or  from  both. 
Hence,  at  almost  every  step,  we  may  now  trace  coincidences  in  the 
pleading  and  practice  in  a  Eoman  suit.  Story's  Equity  PI.,  sec  14.  The 
same  author,  section  23,  says  'an  original  bill  praying  for  relief  is,  as  we 
have  seen,  founded  upon  some  right  claimed  for  wrong  done  by  the  de- 
fendant, in  order  to  enable  the  court  to  understand  the  case,  and  to  ad- 
minister the  proper  remedial  justice,  as  well  as  to  apprise  the  opposite 
party  of  the  nature  of  the  claim  and  of  the  redress  asked,  and  to  enable 
him  to  make  the  proper  defense  thereto,  it  would  seem  indispensable 
that  the  bill  should  contain  a  clear  and  exact  statement  of  all  the  mate- 
rial facts.' 

"This  is  a  pretty  accurate  description  of  what  a  petition  ought  to  em- 
brace in  our  courts;  in  truth,  to  set  aside  a  few  set  phrases,  which  are 
mere  matter  of  form,  there  is  no  difference  in  their  structure.  There 
is,  however,  another  reason  that  should  recommend  the  chancery  prac- 
tice to  our  courts  as  rules  of  pleading  in  preference  to  that  of  the  com- 
mon law  courts.  It  will  be  seen  that  the  Legislature  has  expressly  di- 
rected that  suits  should  be  brought  by  petition,  i.  e.,  the  act  to  regulate 
judicial  proceedings  in  civil  suits,  section  1 :  'That  the  adoption  of  the 
common  law  shall  not  be  construed  to  adopt  the  common  law  system 
of  pleading,  but  the  proceedings  in  all  civil  suits  shall,  as  heretofore,  be 
conducted  by  petition  and  answer/  See  Acts  Congress  1840,  p.  88. 
Thus  in  express  terms  it  continues  the  former  practice  that  had  grown 
up  under  the  civil  law.  And  the  fourth  article,  judicial  department, 
section  10,  of  the  Constitution  of  the  State,  in  granting  jurisdiction  to 
the  district  courts,  directs  that  'it  is  to  be  exercised  without  regard  to 
any  distinction  between  law  and  equity;'  this  mixed  jurisdiction  must 
doubtless  still  more  assimilate  our  proceedings  to  the  pleadings  in  chan- 

89  2  Texas,  542. 


JUDICIAL   SYSTEM   UNDER    CONSTITUTION    1845.  79 

eery,  as  every  cause  of  action  must  be  asserted  by  the  resort  to  the  peti- 
tion, to  be  modified  to  suit  each  particular  case.  I  do  not  mean  to  be 
understood  as  maintaining  that  we  have  the  chancery  rules  of  pleading 
as  a  body;  I  only  mean  that  they  will  be  found  more  analogous  to  our 
system,  and  more  to  be  relied  on,  than  those  of  the  common  law." 

These  cases  show  clearly  that  by  "petition  and  answer"  in  the  early 
laws  of  Texas  is  not  meant  the  written  instruments  so  familiar  to  the 
Texas  practitioner  under  those  names,  but  a  system  of  pleading  unique 
in  its  character,  and  without  any  exactly  corresponding  counterpart. 

In  the  course  of  the  many  changes  in  our  law — organic  and  statutory 
— this  blended  jurisdiction  of  law  and  equity  in  the  same  court  and  this 
system  of  pleading  by  petition  and  answer  have  remained  unaltered. 

The  difference  between  this  Texas  method  of  procedure  and  the  com- 
mon law  is  too  plain  to  need  pointing  out.  The  difference  between  this 
and  the  ordinary  code  system  is  also  apparent.  The  Texas  plan  allows 
to  both  parties  and  to  the  court  the  greatest  latitude  which  is  consistent 
with  safety,  and  yet  encourages  the  parties  to  make  known  to  the  court 
the  very  facts  upon  which  they  respectively  rely,  and  puts  a  premium  upon 
clear,  concise,  and  logical  statement  of  these  facts.  It  does  not  require 
the  attorney  for  either  party  to  determine  in  advance  at  the  peril  of  his 
client  whether  his  cause  of  action  be  technically  legal  or  equitable,  or  in 
what  form  of  action  he  shall  proceed,  or  to  select  one  issue  upon  which 
to  risk  the  whole  case;  but  permits  him  to  present  to  the  court  every 
phase  of  the  controversy  and  to  ascertain  whether  or  not,  from  any  point 
of  view,  consistent  with  truth,  his  client  is  entitled  to  relief. 


No  Material  Changes  Till  1869. 

The  Constitution  of  1845  was  amended  in  1850  so  as  to  make  the 
judicial  officers  elective ;  with  this  exception  it  remained  unaltered  until 
the  convention  of  1861,  when  it  was  modified  so  as  to  conform  to  the 
changed  conditions  arising  from  secession.  As  thus  modified  it  consti- 
tuted the  State  Constitution  during  the  existence  of  the  Confederate 
government. 

In  1866  another  convention  met  in  Austin  and  proposed  certain 
amendments  to  the  Constitution,  making  it  conform  this  time  to  the 
change  growing  out  of  the  defeat  of  the  Confederacy. 

These  amendments  were  voted  on  by  the  people  on  the  fourth  Mon- 
day in  June,  1866,  and  were  adopted,  and  the  officers  therein  con- 
templated were  elected  and  entered  upon  the  discharge  of  their  duties. 
The  Congress  of  the  United  States,  however,  refused  to  admit  Texas 
into  the  Union  under  this  Constitution,  and  the  government  formed 
under  it  was  dissolved  and  a  reconstruction  government  instituted  and 
maintained  under  acts  of  Congress. 


80  DEVELOPMENT   OF   JUDICIAL    SYSTEM    OF    TEXAS. 

CONSTITUTION  OF   1869. 
JUDICIAL  SYSTEM  UNDER  CONSTITUTION  OP  1869. 

By  this  reconstruction  government,  a  convention  was  called  to  frame 
another  Constitution  to  be  submitted  to  the  people  and  then  to  the 
Federal  Congress.  This  convention  met  in  Austin  on  June  1,  1868,  and 
adjourned  February  6,  1869.  The  Constitution  passed  by  it  in  its 
"Election  Declaration"  provided  for  its  submission  to  the  people  on  the 
first  Monday  in  July,  1869,  but  the  powers  at  Washington  did  not  con- 
cur in  this  date.  The  President  by  proclamation  of  date  July  15,  1869, 
ordered  its  submission  on  Tuesday,  November  30,  1869.  The  time 
was  again  changed  by  military  commander,  and  the  election  in  fact 
took  place  on  November  30,  and  December  1,  2,  and  3,  1869. 31  The 
Constitution  was  adopted,  and  at  the  same  time  the  State  officers  and 
others  contemplated  therein  were  elected.  The  Legislature  met  Febru- 
ary 25,  1870,  and  adopted  the  thirteenth,  fourteenth,  and  fifteenth 
amendments  to  the  Constitution  of  the  United  States.  By  act  of 
Congress  approved  and  taking  effect  March  30,  1870,  Texas  was  restored 
to  full  fellowship  in  the  United  States. 

The  judicial  article  in  this  Constitution  is  as  follows : 

"Section  1.  The  judicial  power  of  the  State  shall  be  vested  in  one 
Supreme  Court,  in  district  courts,  and  in  such  inferior  courts  and  magis- 
trates as  may  be  created  by  this  Constitution,  or  by  the  Legislature  un- 
der its  authority.  The  Legislature  may  establish  criminal  courts  in  the 
principal  cities  within  the  State,  with  such  criminal  jurisdiction,  coexten- 
sive with  the  limits  of  the  county  wherein  such  city  may  be  situated,  and 
under  such  regulations  as  may  be  prescribed  by  law;  and  the  judge 
thereof  may  preside  over  the  courts  of  one  or  more  cities  as  the  Legis- 
lature may  direct." 

The  Supreme  Court  consisted  of  three  judges  and  had  appellate  juris- 
diction only.  In  civil  cases,  this  was  coextensive  with  the  limits  of  the 
State.  In  criminal  cases  no  appeal  was  allowed  to  the  court,  unless 
one  of  the  judges,  upon  inspection  of  the  record,  believed  that  some 
error  of  law  had  been  committed  in  the  trial.  The  district  courts  had 
all  the  jurisdiction  now  exercised  by  both  district  and  county  courts. 
The  judges  of  the  Supreme  and  district  courts  were  appointed  by  the 
Governor. 

31  2  Pasch.  Laws,  note  1227. 


JUDICIAL    SYSTEM   UNDER    CONSTITUTION    OF    1876.  81 


JUDICIAL  SYSTEM  UNDER  CONSTITUTION  OP  1876. 

This  Constitution  and  its  amendments  were  in  turn  superseded  by 
that  under  which  the  government  is  now  being  administered,  known  as 
the  Constitution  of  1876.  This  was  formulated  by  a  convention  which 
sat  in  1875  and  was  submitted  to  the  people  and  adopted  on  February 
15,  1876,  and  by  its  own  terms  became  operative  on  April  18,  thereafter. 

The  judicial  system  created  by  this  instrument  (in  its  original  form) 
comprised  two  courts  of  last  resort,  namely,  the  Supreme  Court  and  the 
Court  of  Appeals.  The  first  consisted  of  three  judges  and  had  ap- 
pellate jurisdiction  of  all  civil  cases  tried  in  the  district  courts,  but  no 
jurisdiction  in  criminal  cases  or  in  appeals  from  the  county  court. 
The  second  consisted  of  three  judges,  and  had  appellate  jurisdiction 
in  all  appeals  in  all  criminal  cases  from  the  district,  and  of  all  appeals 
from  the  county  court,  in  both  civil  and  criminal  matters.  There  were 
four  classes  of  courts  of  original  jurisdiction,  namely,  district,  county, 
county  commissioners,  and  justices.  The  jurisdiction  of  all  these  was, 
in  many  respects,  the  same  as  the  courts  of  the  same  designations  under 
the  present  law. 

This  Constitution  made  all  judicial  officers  elective. 

With  the  development  of  the  State  and  the  growth  of  its  population 
and  business,  the  volume  of  litigation  increased  so  much  that  it  was 
found  impossible  for  the  Supreme  Court  to  dispose  of  the  cases  brought 
before  it.  It  was  apparent  that  relief  in  some  form  must  be  provided 
for  the  unreasonable  delay  of  justice,  which  in  many  cases  amounted 
to  a  denial  of  all  practical  relief.  Eesort  was  had  to  a  commission  of 
appeals,  consisting  of  three  lawyers  appointed  by  the  Governor,  who 
were  to  sit  as  a  commission,  and  to  whom  were  to  be  referred  causes 
pending  before  the  Supreme  Court,  and  civil  cases  pending  in  the  court 
of  appeals,  in  which  the  parties  should  agree  to  such  transfer.  The  de- 
cision of  these  cases  by  the  commission  was  to  be  final  without  exami- 
nation or  approval  by  the  Supreme  Court.  The  act  creating  this  tri- 
bunal was  approved  July  9,  1879.32 

Serious  questions  were  raised  as  to  the  constitutionality  of  this  act, 
but  the  majority  of  the  Supreme  Court  construed  it  as  creating  a  board 
of  arbitrators  and  not  a  court,  and  sustained  the  law.33  By  its  own 
terms  this  act  was  to  expire  in  two  years.  The  next  session  of  the  Leg- 
islature offered  an  amendment  to  the  judiciary  article  of  the  Constitu- 
tion, which  among  other  changes,  proposed  to  increase  members  of 
the  Supreme  Court  to  seven  judges.  The  adoption  of  this  amendment 

32  Acts  of  the  Special  Session,  Sixteenth  Legislature,  p.  30. 

33  Henderson  v.  Beaton,  52  Texas,  29. 

6 — Pleading 


82  DEVELOPMENT   OF    JUDICIAL   SYSTEM   OF   TEXAS. 

being  doubtful,  the  Legislature  by  the  act  of  July  9,  1881,  provided  for  a 
continuance  of  the  commission,  making,  however,  material  changes  in 
the  law.  The  reference  of  cases  was  no  longer  confined  to  those  agreed 
on  by  the  parties,  but  the  Supreme  Court  and  the  Court  of  Appeals  were 
authorized  to  refer  cases  to  it,  without  such  consent;  the  power  to 
finally  determine  cases  was  taken  away  and  the  decisions  of  the  commis- 
sioners were  required  to  be  submitted  to  the  Supreme  Court,  and  were 
tnot  to  be  valid  unless  approved  by  it;  so  when  adopted  the  opinions 
were  to  be  published  officially,  and  the  judgments  were  to  be  rendered 
by  the  Supreme  Court  in  conformity  with  the  decisions.  This  act  was 
also  attacked  as  unconstitutional,  but  was  again  sustained;  this  time 
on  the  theory  that,  while  the  voluntary  feature  of  the  former  law,  upon 
which  it  had  been  sustained,  was  eliminated,  yet  the  denial  of  the  right 
of  final  determination  of  questions  ~bj  the  commission,  and  requiring 
all  decisions  to  be  approved  by  the  Supreme  Court,  made  the  law  valid.34 
The  proposed  amendment  to  the  Constitution  was  voted  on  in  Septem- 
ber, 1881,  and  defeated.  The  commission  of  appeals  was  continued  from 
time  to  time  until  by  act  of  April  8,  1891,  two  sections  of  three  judges 
each  were  created.  It  soon  became  apparent  that  it  required  a  very 
large  share  of  the  time  and  attention  of  the  Supreme  Court  to  examine 
and  pass  upon  the  work  of  the  two  commissions,  and  that  the  continu- 
ance of  that  policy  by  increasing  the  number  of  commissions  would 
soon  result  in  practically  depriving  the  Supreme  Court  of  any  oppor- 
tunity to  consider  and  decide  cases  upon  its  own  investigation.  Some 
change  seemed  imperative. 


SYSTEM  UNDER  AMENDMENT  OF  1891. 

The  Legislature  submitted  amendments  to  the  judiciary  article  of  the 
Constitution,  which  were  voted  on  and  adopted  in  September,  1891. 
These  are  the  present  constitutional  provisions  on  this  subject. 

The  system  created  thereby  consists  of  one  Supreme  Court,  hav- 
ing civil  jurisdiction  only,  and  whose  duty  it  is  to  revise  decisions 
of  the  courts  of  civil  appeals  in  enumerated  classes  of  cases,  and  to 
hear  a  few  classes  of  original  suits  against  the  heads  of  departments 
and  State  officers;  a  Court  of  Criminal  Appeals,  having  appellate  jur- 
isdiction of  all  criminal  cases  tried  in  the  district  and  county  courts, 
but  having  no  civil  jurisdiction  whatever;  courts  of  civil  appeals,  hav- 
ing appellate  jurisdiction  of  all  civil  cases  tried  in  the  district  and  county 
courts,  and  whose  decisions  in  many  classes  of  cases  are  final,  and  in 
others  are  subject  to  review  and  correction  by  the  Supreme  Court;  dis- 
trict courts,  having  jurisdiction  over  the  larger  share  of  civil  litigation 

34  Stone  v.  Brown,   54  Texas,   330. 


SYSTEM   UNDEE   AMENDMENT    OF    1891.  83 

of  importance,  and  of  criminal  cases  of  the  grade  of  felony,  and  of  all 
suits  and  complaints,  jurisdiction  over  which  is  not  expressly  conferred 
on  some  other  tribunal;  county  courts,  having  jurisdiction  of  civil  mat- 
ters of  less  importance  than  those  committed  to  the  district  court,  and  of 
all  matters  of  probate,  and  of  misdemeanor  cases;  justices'  courts,  hav- 
ing jurisdiction  over  all  civil  litigation  involving  less  than  two  hun- 
dred dollars  and  not  committed  to  some  other  court,  and  criminal  juris- 
diction of  misdemeanors  where  the  penalty  does  not  exceed  a  fine  of 
two  hundred  dollars;  and  a  county  commissioners'  court,  having  juris- 
diction over  all  county  business  matters. 

The  changes  made  by  these  amendments  are  great.  The  most  ma- 
terial were  to  deprive  the  Supreme  Court  of  immediate  jurisdiction  in 
cases  appealed  from  courts  of  original  jurisdiction,  and  confine  it  to  the 
hearing  of  designated  kinds  of  cases  coming  from  the  courts  of  civil 
appeals,  and  to  give  to  it  original  jurisdiction  in  certain  kinds  of  cases 
against  heads  of  departments  of  the  State  government,  when  the  Legis- 
lature should  so  provide;  to  create  a  court  of  last  resort  in  criminal 
cases  without  any  civil  jurisdiction;  to  create  courts  of  civil  appeals,  to 
which  all  appeals  from  district  and  county  courts  in  civil  cases  lie;  and 
to  give  to  the  district  court  original  jurisdiction  of  all  suits  that  are 
rot  within  the  expressed  jurisdiction  of  some  other  court. 


Rigidity  of  Former  Systems. 

The  difference  between  the  present  Constitution  and  former  ones  as 
regards  the  elasticity  of  the  judicial  systems  created  by  them  respec- 
tively is  very  great.  Beginning  as  early  as  1849,  in  the  case  of  Titus  v. 
Latimer,35  the  Supreme  Court  adopted  very  strict  rules  of  construction 
as  to  the  powers  and  jurisdiction  of  courts  created  by  the  Constitution. 
The  doctrine  of  the  case,  as  aptly  stated  in  the  syllabus,  is  as  follows : 
"The  Supreme  Court  and  the  district  court  are  essentially  creatures  of  the 
Constitution.  The  Legislature  can  not  add  to  nor  take  from  their  juris- 
diction. Where  the  Constitution  has  not  prescribed  any  mode  in  which 
the  jurisdiction  shall  be  exercised,  it  is  competent  for  the  Legislature 
to  do  so.  But  where  the  Constitution  prescribes  a  mode,  the  Legisla- 
ture can  not  prescribe  a  different/' 

This  rule  was  recognized  and  enforced  with  all  of  its  logical  conse- 
quences by  an  unbroken  line  of  decisions  until  the  adoption  of  the 
amendments  in  1891 ;  and  indeed  its  spirit,  if  not  its  letter,  seems  still  to 
dominate  the  Court  of  Criminal  Appeals.  Among  the  most  interesting 

35  5  Texas,  436. 

36  48  Texas,  413. 


84  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF   TEXAS. 

of  these  cases  are  Ex  Parte  Towles,36  Williamson  v.  Lane,37  both  under 
the  Constitution  of  1869,  and  Gibson  v.  Templeton,38  under  the  Consti- 
tution of  1876.  In  the  latter  this  language  is  used:  "The  opinions 
of  this  court  rendered  previous  to  that  in  Ex  Parte  Whitlow,  established 
clearly  the  following  principles :  1.  The  district  court  has  under  our  Con- 
stitution no  jurisdiction  of  any  civil  proceeding  which  is  not  a  suit,  com- 
plaint, or  plea,  wherein  the  matter  in  controversy  is  valued  at  or  amounts 
to  $500,  exclusive  of  interest.  Ex  Parte  Towles,  48  Texas.  413;  Wil- 
liamson v.  Lane,  52  Texas,  344.  Except  it  be  a  proceeding  coming  under 
its  general  power  to  issue  an  injunction  (58  Texas,  616),  mandamus,  cer- 
tiorari,  and  writs  necessary  to'  enforce  its  jurisdiction. 

"2.  The  Legislature  has  no  power  to  confer  upon  the  district  courts 
a  jurisdiction  not  given  by  the  Constitution.  Hence  it  can  not  authorize 
it  to  take  cognizance  of  any  proceeding  not  a  suit,  complaint,  or  plea 
of  the  character  above  described.  Same  authorities. 

"3.  That  a  proceeding  to  contest  an  election  is  not  a  suit,  complaint 
or  plea  within  the  meaning  of  the  Constitution.  That  there  is  a  differ- 
ence between  the  contest  of  an  election  and  a  suit  for  an  office,  the  latter 
being  a  suit  within  the  letter  and  meaning  of  the  Constitution,  the 
former  involving  a  political,  or  rather  an  extra  judicial,  question  to  be 
regulated  under  the  Constitution  by  the  political  authority  of  the  State. 
Same  authorities;  also  Wright  v.  Fawcett,  42  Texas,  203;  Eogers  v. 
Johns,  Id.,  339. 

"The  logical  deduction  from  these  well  settled  principles  is  that  under 
the  Constitution  of  1876  the  district  court  can  not  entertain  jurisdiction 
of  a  proceeding  the  object  of  which  is  merely  to  contest  an  election  and 
which  is  not  a  suit  between  claimants  for  the  recovery  of  the  office  itself." 


Elasticity  of  Present  System. 

It  is  apparent  that  a  system  of  so  little  elasticity  could  not  be  adapted 
to  the  varying  conditions  of  a  progressive  people,  and  that  so  long  as  our 
courts  were  all  tribunals  of  enumerated  powers  and  must  each  be  able  to 
point  out  specific  warrant  in  the  Constitution  for  all  it  did,  there  must 
of  necessity  arise  unforeseen  contingencies  for  which  no  provision  had 
been  made;  and  that  no  matter  how  apparent  the  hardship  of  the  situa- 
tion, neither  the  Legislature  nor  the  courts  could  give  relief.  These 
defects,  coupled  with  the  fact  that  it  was  a  physical  impossibility  for  the 
Supreme  Court  to  keep  up  with  the  vast  and  ever  increasing  number  of 
appeals  in  civil  cases,  constituted  the  recognized  necessity  for  a  change  in 
our  judicial  system.  The  amendments  of  1891  were  the  result.  The  con- 

"52  Texas,  336. 
38  62  Texas,  556. 


SYSTEM   UNDER   AMENDMENT   OF    1891.  85 

gestion  of  the  Supreme  Court  docket  was  relieved  by  the  creation  of  in- 
termediate courts  of  appeal  in  civil  cases ;  and  the  need  of  a  court  having 
jurisdiction  of  all  grievances  not  otherwise  provided  for  was  filled  by 
conferring  such  power  on  the  district  courts.  There  were  also  dispersed 
throughout  the  judiciary  article  many  expressions  and  clauses  of  such 
nature  as  to  indicate  clearly  the  elasticity  of  the  system  thereby  created 
and  the  power  of  the  Legislature  to  modify  the  jurisdiction  of  the  several 
courts  constituting  parts  thereof  and  to  adapt  them  to  each  other,  so 
long  as  such  changes  are  not  so  extreme  as  to  affect  the  character  and  in- 
tegrity of  the  system  as  a  whole.  While  it  might  not  be  competent  for  the 
Legislature  to  abolish  any  constitutional  court,  either  by  direct  pro- 
vision or  indirectly  by  depriving  it  of  jurisdiction  over  all  or  nearly  all 
the  subject  matter  given  it  by  the  Constitution,  still  it  seems  to  be  clear 
that  it  can  regulate  and  modify  such  jurisdiction,  either  by  adding  to  or 
taking  from  it  or  by  directing  the  mode  of  its  exercise,  so  long  as  the 
court  so  regulated  is  left  with  sufficient  power  to  form  a  substantive  part 
of  the  judicial  system  and  to  discharge  the  functions  committed  to  it  by 
tbe  Constitution. 

One  fact  must,  however,  be  observed  in  connection  with  these  general 
statements,  viz.,  that  there  is  no  express  power  granted  to  the  Legis- 
lature to  take  from  the  jurisdiction  of  the  district  court.  It  is  a  court 
of  general  jurisdiction  in  the  broadest  sense  of  that  term;  and,  while 
under  section  22,  article  25,  it  is  doubtless  competent  for  the  Legislature 
to  confer  on  the  county  court  some  kinds  of  jurisdiction  given  to  the  dis- 
trict court,  and  at  the  same  time  to  take  such  jurisdiction  from  the  dis- 
trict court,  it  is  still  extremely  doubtful  whether  such  a  transfer  could  be 
made  of  any  of  the  powers  which  are  expressly  conferred  by  the  Constitu- 
tion upon  the  district  court  and  denied  to  the  county  court.  It  is  clear  that 
the  Legislature  could  not  take  from  the  dictrict  court  any  of  its  constitu- 
tional jurisdiction  anless  at  the  same  time  such  jurisdiction  were  con- 
ferred upon  some  other  court  It  is  not  to  be  understood  that  the  opinions 
announced  above  are  supported  by  any  direct  or  authoritative  adjudica- 
tion determining  the  legislative  power  over  the  courts  under  the  amend- 
ments of  1891;  for  no  such  far-reaching  decisions  have  been  made.  But 
there  have  been  several  cases  decided  by  the  Supreme  Court  which  tend 
strongly  in  that  direction.39 

Some  of  the  clauses  in  the  Constitution  indicating  this  change  of  policy 
are  as  follows :  The  appellate  jurisdiction  of  the  Supreme  Court  ex- 
tends "to  questions  of  law  arising  in  cases  in  which  the  Court  of  Civil  Ap- 
peals has  appellate  jurisdiction,  under  such  restrictions  and  regulations 
as  the  Legislature  may  prescribe."  Until  otherwise  provided  by  law,  "the 
jurisdiction  of  the  Supreme  Court  shall  extend,"  etc.  "The  Legisla- 
ture may  confer  original  jurisdiction  on  the  Supreme  Court  to  issue 

39  Harris  County  v.  Stewart,  41  S.  W.,  650;  May  v.  Finley,  43  S.  W.,  257. 


86  DEVELOPMENT   OF   JUDICIAL    SYSTEM   OF   TEXAS. 

writs,"  etc.  "Courts  of  civil  appeals  shall  have  appellate  jurisdiction 
coextensive  with  the  limits  of  their  respective  districts,  under  such  re- 
strictions and  regulations  as  may  be  prescribed  by  law,"  The  clause 
providing  for  district  courts  concludes  as  follows :  The  district  court 
"shall  have  general  original  jurisdiction  over  all  causes  whatever  for 
which  a  remedy  or  a  jurisdiction  is  not  provided  by  law  or  this  Con- 
stitution, and  such  other  jurisdiction,  original  and  appellate,  as  may  be 
provided  by  law."  Eegarding  county  courts  the  provision  is:  "The 
Legislature  shall  have  power  by  local  or  general  law  to  increase,  diminish, 
or  change  the  civil  and  criminal  jurisdiction  of  county  courts,  and  in  case 
of  any  such  change  of  jurisdiction  the  Legislature  shall  also  conform  the 
jurisdiction  of  the  other  courts  to  such  change."  The  justice  court  has  a 
certain  designated  jurisdiction,  "and  such  other  jurisdiction,  criminal 
and  civil,  as  may  be  provided  by  law,  under  such  regulations  as  may 
be  prescribed  by  law."  The  Constitution  is  evidently  designed 
to  establish  a  well  defined  system  of  courts,  whose  relative  posi- 
tions and  functions  are  plainly  indicated,  but  in  matters  of  detail 
large  discretion  is  purposely  left  to  the  Legislature.  The  spirit  of  this 
amendment  is  so  different  from  the  rules  of  interpretation  applied  by  the 
courts  to  former  Constitutions,  that  the  decisions  announcing  those  rules 
can  be  of  but  little  value  as  authority  in  determining  questions  arising 
under  the  amendments.  It  is  true  the  Court  of  Criminal  Appeals,  in 
Leach  v.  State,40  cite  and  rely  upon  these  former  decisions;  but  these 
cases  can  not  be  regarded  as  authoritative  in  civil  suits,  and,  moreover, 
as  shown  by  the  authorities  cited  above,  the  Supreme  Court  of  the  State 
has  in  several  cases  come  to  directly  the  opposite  conclusion  and  has 
gone  far  toward  announcing  the  rule  of  liberal  construction. 

40  36  Texas  Grim.  Rep.,  248. 


THE   JUDGE.  87 


CHAPTEE  V. 

ORGANIZATION  OF  DISTRICT  AND  COUNTY  COURTS. 

The  district  and  county  courts  consist  of  a  judge,  jurors,  clerk,  and 
sheriff.  Attorneys  at  law  are  officers  of  the  court,  but  are  not  essential 
parts  of  it. 

THE  JUDGE. 

The  judge  is  the  head  of  the  court,  its  principal  and  most  responsible 
member.  So  important  and  conspicuous  are  his  functions  that  he  is  often 
spoken  of  as  the  court.  He  is  the  mouthpiece  of  the  sovereign,  its  most 
responsible  and  authoritative  representative,  under  whose  direction  and 
control  all  other  members  and  officers  of  the  court  are  placed.  He  pre- 
sides at  its  sittings,  has  general  control  over  its  proceedings,  decides  all 
questions  of  propriety  of  conduct  on  the  part  of  all  persons  connected 
therewith,  supervises  the  official  action  of  every  one  engaged  in  carrying 
on  any  part  of  its  work,  decides  all  questions  of  law  that  arise  in  the 
administration  of  justice,  and  also  all  questions  of  fact  arising  inci- 
dentally in  interlocutory  matters,  which  do  not  determine  finally  the 
case  or  the  cause  of  action,  and  also,  in  the  absence  of  affirmative  action 
calling  for  a  jury,  all  questions  of  fact  arising  in  the  progress  of  the  trial 
and  its  final  disposition. 

One  district  judge  is  elected  in  each  judicial  district,  who  holds  his 
office  for  four  years.  If  the  office  becomes  vacant  at  any  time,  the 
Governor  fills  the  vacancy  by  appointment,  which  must  be  approved  by 
the  Senate,  if  in  session  at  the  time.  If  the  Senate  is  not  then  in  session, 
the  appointment  must  be  sent  to  it  within  ten  days  after  it  shall  next 
convene  in  regular  session,  and  unless  the  appointee  is  confirmed  before 
adjournment,  the  office  becomes  vacant.  In  case  of  confirmation,  or  if 
there  is  no  intervening  session  of  the  Senate,  the  appointee  holds  until 
the  next  regular  election,  at  which  time  the  place  shall  be  filled  by  election. 
The  party  so  elected  shall  hold  his  office  only  for  the  unexpired  term  of 
the  judge  who  first  vacated  the  office. 

To  be  eligible  as  a  district  judge  a  person  must  be  at  least  twenty-five 
years  old.  a  citizen  of  the  United  States,  who  has  resided  in  the  district 
for  two  years  next  before  his  election.  He  must  have  been  a  practicing 
attorney  or  judge  of  a  court  in  this  State  at  least  four  years.1 

County  judges  are  elected  every  two  years  at  the  regular  elections  by 

1  Constitution,  art.  V,  sec.  7;   Rev.  Stats.  1895,  arts.  1064-1067. 


OO  ORGANIZATION    OF   DISTRICT   AND    COUNTY    COURTS. 

the  qualified  voters  of  the  respective  counties.  They  hold  their  offices 
for  two  years.  Vacancies  occurring  are  filled  by  appointment  by  the 
commissioners'  court  of  the  county. 

To  be  eligible  as  a  county  judge,  the  candidate  must  "be  well  informed 
in  the  law  of  the  State."2 

This  question  is  settled  by  a  majority  of  the  votes  cast,  and  the  extent 
of  the  judge's  legal  information  can  not  be  inquired  into  through  the 
courts  after  his  induction  into  office.3 

In  addition  to  his  duties  and  powers  as  presiding  officer  of  the  court, 
the  judge,  either  in  term  time  or  vacation,  may  grant  writs  of  mandamus, 
injunction,  sequestration,  attachment,  garnishment,  certiorari,  and  all 
other  writs  necessary  to  the  enforcement  of  the  jurisdiction  of  his  court.* 

The  writs  so  issued  by  the  judge  are  only  in  aid  of  or  in  carrying  out 
the  jurisdiction  of  the  court  over  which  he  may  preside,  or  in  case  of 
district  judges,  some  other  court  of  the  same  class.  They  have  no  power 
to  finally  hear  and  adjudge  cases  in  which  these  writs  are  issued. 
That  can  be  done  only  by  the  court  in  term  time. 

District  judges  are  also  convervators  of  the  peace  throughout  the 
State.5 

No  judge  shall  sit  in  any  cause  wherein  he  may  be  interested  or  where 
he  shall  have  been  of  counsel,  or  where  either  of  the  parties  may  be  con- 
nected with  him  by  affinity  or  consanguinity  within  the  third  degree.6 

The  public  is  interested  in  the  impartial  administration  of  justice  and 
the  freedom  of  the  judiciary  from  all  appearance  of  evil  or  adverse 
criticism,  and  hence  the  parties  to  a  suit  can  not,  by  agreement,  waive  the 
disqualification  of  a  judge  and  clothe  him  with  authority  to  hear  a  case.7 

The  disqualifying  interest  must  be  a  pecuniary  one,  directly  inv.olved 
in  the  case,  or  so  closely  connected  with  it  that  the  decision  rendered 
will  have  some  legal  effect  on  his  property  rights.8 

In  the  absence  of  such  interest  he  is  not  disqualified.9 

It  is  the  fact  of  the  employment  of  the  judge  as  counsel  and  the  estab- 

2  Constitution,  art.  V,  sec.  15,  and  art.  XVI,  sec.  17;  Rev.  Stats.  1895,  art.  1124. 

3  Little  v.  State,  75  Texas,  621,  12  S.  W.,  965. 

4  Rev.  Stats.  1895,  arts.  1107,  1163. 

5  Constitution,  art.  V,  sec.  12. 

6  Constitution,  art.  V,  sec.  11;  Rev.  Stats.  1895,  arts.  1069-1129. 

7  Abrams  v.  State,  31  Texas  Grim.  Rep.,  449;  Wynns  v.  Underwood,  1  Texas, 
48:  Chambers  v.  Hodges,  23  Texas,  105;  Andrews  v.  Bank,  23  Texas,  453;  Dallas 
v.  Peacock,  33  S.  W.,  220. 

8  King  v.  Sapp,  66  Texas,  519,  2  S.  W.,  573;  Wetzel  v.  State,  5  Texas  Civ.  App., 
17,  23  S.  W.,  825;  Casey  v.  Kinsey,  5  Texas  Civ.  App.,  3,  23  S.  W.,  818;  State  v. 
Cisco,  33  S.  W.,  244;  Williams  v/Bank,  27  S.  W.,  147. 

9  Waters  Pierce  Oil  Co.  v.  Cook,  6  Texas  Civ.  App.,  573,  26  S.  W.,  96 ;  Nicholson 
v.  Showalter,  83  Texas,  99,  18  S.  W.,  326;  McFadden  v.  Preston,  54  Texas,  406; 
Grigsby  v.  May,  84  Texas,  240,  19  S.  W.,  343. 


THE   JUDGE.  89 

lishment  of  the  fiduciary  relation  of  attorney  and  client  which  dis- 
qualifies, and  whenever  that  relation  has  existed  as  to  the  subject  matter 
of  the  suit,  he  can  not  sit  though  no  fee  was  paid  or  expected,  or  though 
the  relation  may  have  terminated  before  his  election.10 

Pecuniary  interest  of  a  person  related  to  the  judge  within  the  pro- 
hibited degree  does  not  disqualify  unless  the  relative  is  a  party.11 

There  are  certain  statutory  bonds  taken  in  the  name  of  the  county 
judge,  but  in  which  he  has  no  real  interest.  Suits  on  such  bonds  may  be 
brought  before  him,  in  his  name  officially,  and  he  is  not  disqualified.12 

If,  at  the  time  set  for  holding  the  court,  the  judge  does  not  appear,  or 
shall,  during  the  term,  discontinue  the  discharge  of  his  duties  and 
abandon  the  holding  of  the  court  before  it  is  adjourned  for  the  term,  the 
attorneys  practicing  before  the  court  and  then  present,  may,  by  taking  the 
proper  steps  under  the  statute,  elect  one  of  their  number  possessing  the 
proper  qualification  to  hold  the  court.  The  judge  so  elected  shall,  upon 
taking  the  oath  of  office  and  entering  upon  his  duties,  have  the  same 
power  and  jurisdiction  as  to  holding  that  term  of  the  court  that  the 
regular  judge  has.13 

If  the  regular  judge  holding  a  court  shall  be  disqualified  for  the  trial 
of  any  particular  case  on  the  docket,  he  shall  at  once  notify  the  Governor 
of  the  fact  of  such  disqualification  and  the  Governor  shall  at  once  order 
an  exchange  of  districts  between  such  judge  and  some  other  conveniently 
situated,  and  it  is  the  duty  of  the  judges  to  make  the  exchange.  If,  how- 
ever, a  regular  judge  can  not  be  provided  in  this  way,  the  parties  may 
agree  upon  an  attorney  to  try  the  case.14 

The  act  making  these  provisions  repeals  articles  1069  and  1070  of 
Revised  Statutes  of  1895,  which  had  authorized  the  parties  to  agree  upon 
judges  in  cases  in  which  the  special  judge  elected  for  the  term  was  dis- 
qualified. There  is  no  reference  to  such  cases  in  the  last  act  and  it 
seems,  therefore,  no  authority  exists  for  the  procurement  of  a  judge  in 
the  district  court  to  try  a  case  in  which  a  judge  elected  for  the  term  is 
disqualified. 

The  Act  of  1897  has  no  reference  to  the  county  court,  and  so  the  par- 
ties to  a  suit  there  may  agree  upon  a  special  judge  in  any  case  in  which 
the  judge  holding  the  court,  whether  regular  or  elected  for  the  term,  is 

10Wilkes  v.  State,  27  Texas  Crim.  App.,  381;  Newcome  v.  Light,  58  Texas,  141; 
State  v.  Burks,  82  Texas,  584,  18  S.  W.,  662;  Utzman  v.  State,  32  Texas  Crim. 
Rep.,  426;  Hobbs  v.  Campbell,  79  Texas,  360,  15  S.  W.,  282;  Kemp  v.  Bank,  4 
Texas  Civ.  App.,  648,  23  S.  W.,  916;  Eailway  v.  Mackney,  83  Texas,  410,  18  S.  W., 
949;  Cullen  v.  Drane,  82  Texas,  484,  18  S.  W.,  590. 

"Uniston  v.  Masterson,  87  Texas,  200,  27  S.  W.,  768;  Knopp  v.  Campbell,  36 
S.  W.,  765. 

12  Peters  v.  Duke,  1  W.  &  W.  C.  C.,  sec.  304. 

13  Constitution,  art.  V,  sec.  7;  Rev.  Stats.  1895,  art.  1071,  through  1077-1132b- 
1132c. 

"Acts  of  1897    (Special  Session),  chap.  12,  p.  39. 


90  ORGANIZATION"   OF   DISTRICT   AND    COUNTY    COURTS. 

disqualified,  and  the  judge  so  elected  has  all  the  power  and  authority  in 
that  case  which  the  disqualified -judge  would  have  had.15 

In  case  of  disqualification  of  the  regular  judge  of  the  county  court,  if 
the  parties  fail  to  agree  on  a  special  judge  at  the  first  term  of  the  court, 
the  judge  should  notify  the  Governor  of  his  disqualification,  and  he 
should  appoint  a  proper  party  to  try  the  case.16 

Whenever  a  special  judge  is  elected  for  a  term,  or  part  thereof,  or  is 
appointed  by  the  governor,  or  agreed  upon  by  the  parties,  every  fact 
authorizing  such  action  and  every  step  taken  to  select  such  judge  and  his 
qualification  as  such  must  be  entered  of  record  in  the  minutes  of  the 
court.17 

THE  JURY. 

A  jury,  under  our  law,  is  a  'body  of  men  obtained  from  the  properly 
qualified  citizens  of  the  State  residing  in  the  county  in  which  the  court 
is  held,  selected  and  organized  according  to  the  requirements  of  the  law, 
for  the  purpose  of  hearing  and  determining  issues  of  fact  arising  in  the 
administration  of  justice. 

Juries  are  grand  and  petit. 

The  grand  jury  is  an  inquisitorial  body  organized  in  the  several  district 
courts  for  the  purpose  of  searching  out  and  investigating  violations  of 
the  criminal  laws  and  presenting,  in  due  form  of  law,  for  prosecution 
before  the  courts,  all  persons  who, are  guilty  of  such  violations.  They 
have  no  civil  functions,  and  are  never  impaneled  in  or  by  the  county 
courts. 

A  petit  jury  in  the  district  or  county  court  is  a  body  of  men  selected 
in  accordance  with  the  law  to  hear  and  determine  the  issues  of  fact  joined 
in  the  pleadings  of  the  parties,  in  a  particular  case,  whether  civil  or 
criminal.  In  the  district  court  it  consists  of  twelve  men  and  in  the 
county  court  six. 

In  cases  in  which  a  jury  is  lawfully  demanded,  all  questions  of  fact 
which  involve  the  final  disposition  of  the  case,  whether  arising  on  pleas 
in  abatement  or  in  bar,  must  be  submitted  to  it  for  determination  by  the 
judge.  In  submitting  these  facts,  the  judge  must  advise  the  jury  care- 
fully and  fully  as  to  the  principles  and  rules  of  law  by  which  they  are  to 
be  guided  in  reaching  their  conclusions,  but  he  must  not  indicate  to  them 
directly  or  otherwise  his  opinion  of  the  facts  except  in  a  few  instances  in 
which  the  law  presumes  or  determines  the  existence  of  one  fact  from  the 
proof  of  others,  or  in  which  there  is  an  express  requirement  of  law 
making  it  his  duty  to  do  so  in  the  particular  case. 

"Rev.  Stats.  1895,  arts.  1131,  1132. 
"Rev.  Stats.  1895,  arts.  1131,  1132. 

17  As  to  District  Judges,  see  Rev.  Stats.  1895,  art.  1075,  and  Acts  1897,  chap. 
12;  County  Judges — Rev.  Stats.  1895,  arts.  1132a  and  1132c. 


THE   JURY.  91 

The  use  of  juries  and  the  qualifications  of  jurors  and  methods  of  select- 
ing them  have  differed  materially  at  different  times  in  our  judicial  his- 
tory. Under  the  early  Spanish  judicial  system  no  such  institution  was 
known.  It  is  true  two  men  chosen  from  the  body  of  the  county  known 
as  "good  men"  were  selected  to  sit  in  each  case  with  the  judge,  but  these 
have  very  remote  connection  with  or  relation  to  "a  jury"  as  we  use  the 
term.  Later,  the  common  law  as  to  juries,  with  all  its  ideas  and  inci- 
dents, was  adopted,  and  under  it  and  the  Constitutions  of  the  Kepublic 
and  the  State  up  to  that  adopted  in  1875,  trial  by  jury  was  declared  to 
be  a  right  which  should  remain  inviolate,  and  unless  both  the  parties 
affirmatively  waived  a  jury,  one  was  impaneled  in  every  case. 

This  is  still  the  rule  on  the  common  law  side  of  the  Federal  courts. 

In  the  Constitution  adopted  in  1875,  and  legislation  under  it,  the  right 
to  jury  trial  is  recognized  and  guaranteed,  but  there  are  limitations  placed 
around  its  enjoyment  in  civil  cases ;  that  is,  no  jury  is  impaneled  in  any 
civil  case  unless  one  of  the  parties  shall  demand  it,  at  the  time  and  in 
the  manner  required  by  law,  and  shall  pay  a  fee  fixed  by  law  as  a  partial 
reimbursement  of  the  expense  incident  to  the  jury  trial.  He  is  relieved 
from  this  payment  if  he  file  an  affidavit  of  financial  inability  to  obtain 
the  money.  Unless  such  a  demand  is  made,  the  judge  tries  the  matter 
both  of  fact  and  law  arising  in  the  case. 

The  Constitution  of  1875  also  required  that  the  Legislature  should 
prescribe  the  qualifications  of  jurors.  The  change  of  policy  indicated  in 
these  constitutional  provisions  has  been  carried  out  by  the  Legislature, 
and  our  present  jury  system  has  very  practical  recognition  of  the  power 
of  the  Legislature  to  regulate  the  right  of  parties  to  jury  trials  and  the 
qualifications  of  persons  who  are  permitted  to  render  jury  service.  It 
is  not  designed  to  go  into  a  detailed  consideration  of  all  these  statutes 
and  the  cases  construing  them,  but  a  general  treatment  of  the  subject  is 
indispensable. 

Qualifications  of  Jurors. 

To  be  qualified  to  serve  as  a  juror  a  person  must — 

First. — Be  a  male  over  twenty-one  years  of  age. 

Second. — A  citizen  of  this  State,  residing  in  the  county  in  which  the 
service  is  to  be  rendered,  qualified  to  vote  therein. 

Third. — Be  a  freeholder  in  the  State  or  a  householder  in  the  county. 
A  freeholder  is  one  who  holds  title  to  real  estate,  within  the  State,  and  a 
householder  is  one  who  has  lawful  possession  and  control  of  a  house. 

"A  house  is  any  structure  inclosed  with  walls  and  covered,"  and  any 
one  who  has  a  legal  right  in  such  a  structure  and  who  exercises  there- 
under the  present  right  of  control  over  it  is  a  householder. 

Fourth. — Be  of  sound  mind. 

Fifth. — Be  of  good  moral  character. 


y<S  ORGANIZATION"   OF   DISTRICT   AND   COUNTY    COURTS. 

Sixth. — Not  have  been  convicted  of  theft  or  any  felony. 

Seventh. — Not  be  tinder  legal  accusation  of  theft  or  any  felony. 

Eighth. — Be  able  to  read  and  write;  and 

Ninth. — Not  have  served  as  a  juror  for  six  days  in  preceding  six 
months  in  the  district,  or  three  months  in  the  county  court.  Neither 
of  these  last  two  disqualifications  can  be  insisted  on  in  counties  which, 
in  the  opinion  of  the  judge,  are  so  sparsely  settled  as  to  render  it  difficult 
to  obtain  the  necessary  jurors  if  they  were  enforced.18 

There  are  a  number  of  matters  which  are  legal  exemptions  from  jury 
service  if  claimed  by  the  juror.  They  are  not  disqualifications,  and  can 
not  be  made  cause  for  challenge.19 


Panels  for  the  "Week  and  Manner  of  Forming  Them. 

In  order  to  obtain  the  best  jurors  possible,  the  law  requires  the  judges 
of  the  district  and  county  courts  at  each  session  to  select  three  men  to 
act  as  jury  commissioners.  They  must  be  intelligent  persons,  qualified 
to  serve  as  jurors,  freeholders  of  the  county,  residing  in  different  portions 
of  the  county,  and  must  not  be  interested  in  any  litigation  pending  in  the 
court  which  requires  the  intervention  of  a  jury.  Great  care  should  be 
exercised  in  this  selection,  as  the  duties  of  the  commissioners  are  very 
important.  It  is  the  duty  of  these  commissioners  to  select  the  persons 
who  are  to  serve  as  jurors  at  the  succeeding  term  of  the  court.  They 
are,  in  open  court,  sworn  by  the  judge  and  instructed  as  to  their  duties. 
The  judge  informs  them  for  what  weeks  of  the  court  jurors  will  be  needed 
and  how  many  to  select  for  each  week.  The  statute  is  very  specific  as  to 
the  manner  of  selecting.  The  names  of  all  those  chosen  for  each  week 
are  written  by  the  commissioners  on  duplicate  lists,  each  entitled  a  list 
of  the  jurors  for  that  week,  designating  it.  These  lists  are  certified  to 
by  the  commissioners  and  are  then  sealed  up  by  them  and  delivered  to 
the  judge  in  open  court,  and  he  in  turn  delivers  one  set  of  them  to  the 
clerk.  The  comriiissioners  are  required  to  destroy  all  evidence  of  their 
action  except  the  lists  delivered  to  the  court,  and  not  to  divulge  the  name 
of  any  person  chosen  as  a  juror. 

The  clerk  is  sworn  not  to  open  the  lists  except  in  conformity  to  law. 

One  set  of  these  lists  is  kept  by  the  clerk  of  the  court  until  not  more 
than  thirty  nor  less  than  ten  days  before  the  next  term  of  Ms  court,  and 
then  opened  and  copies  given  to  the  sheriff  for  purpose  of  summoning 
the  jury.  The  other  lists,  are  given  by  the  judge  to  the  clerk  of  the 
other  court  in  his  county, — that  is,  by  the  district  judge  to  the  county 

18  Rev.  Stats.  1895,  arts.  3138,  3139,  3140. 
18  Rev.  Stats.  1895,  arts.  3142,  3143,  3144. 


THE    JURY.  93 

I 

clerk  and  by  the  county  judge  to  the  district  clerk, — to  be  by  him  safely 
kept  and  delivered  to  the  commissioners  next  appointed  in  his  court. 

It  is  the  duty  of  the  sheriff  to  diligently  search  for  and  summon  the 
jurors  selected  by  the  commissioners  and  whose  names  are  on  the  lists 
furnished  him,  and  it  is  the  duty  of  these  persons  so  summoned  to  attend 
the  court  and  serve  as  jurors  unless  they  have  proper  excuse,  and  they  are 
subject  to  fine  for  failing  to  do  so. 

When  the  day  for  impaneling  the  jury  for  each  week  arrives,  the  sheriff, 
in  open  court,  calls  the  names  of  all  persons  who  have  been  summoned 
by  him  from  the  lists  made  by  the  commissioners  for  that  week,  and  these 
parties  come  forward  and  are  examined  under  oath  as  to  their  qualifica- 
tions. Those  found  not  to  be  qualified  are  excused  from  service;  oppor- 
tunity is  then  presented  for  those  qualified  to  present  to  the  judge  reasons 
they  may  have  for  not  serving.  These  are  passed  on  by  the  judge  and 
all  not  excused  are  accepted  as  jurors  for  that. week,  and  if  they  are  suffi- 
cient in  number  to  do  the  work  they  are  sworn  as  jurors  and  constitute 
the  "panel"  for  that  week.  If  there  are  not  enough  of  them,  the  sheriff 
and  his  deputies  are  sworn  and  sent  out  by  the  court  to  summons  other 
qualified  persons  to  complete  the  panel.  The  oath  administered  to  the 
sheriff  is  very  comprehensive,  and  if  properly  observed  would  relieve 
much  of  the  abuse  that  still  remains  in  the  system. 

The  persons  brought  in  by  the  sheriff  are  sworn  and  tested  by  the 
court  and  their  excuses  heard  as  in  the  first  instance,  and  this  process 
is  kept  up  until  there  is  secured  a  sufficient  number,  and  these  persons — 
that  is,  those  originally  selected  by  the  commissioners  and  who  are  ac- 
cepted and  those  brought  in  by  the  sheriff  and  found  qualified  and  not 
excused — constitute  the  panel  for  the  week.  This  panel  is  the  primary 
source  from  which  to  obtain  the  juries  to  try  all  cases  coming  up  during 
the  week  for  which  it  is  formed.  The  panel  formed  for  one  week  may, 
in  the  discretion  of  the  court,  be  adjourned  to  another  week  of  the  same 
term.20 

If  there  should,  from  any  cause,  be  no  jurors  selected  for  the  term  or 
any  week  during  the  term  designated  for  jury  trials,  the  court  must  take 
the  necessary  steps  to  supply  the  deficiency.  If  the  omission  applies  to 
the  whole  term,  the  better  way  is  to  appoint  commissioners  and  have 
jurors  regularly  selected,  and  in  one  case  it  was  held  this  was  the  only 
method.21  But  the  courts  have  declined  to  follow  this  decision,  and  the 
later  cases  hold  that  the  use  of  commissioners  is  preferable,  when  practic- 
able, but  that  the  court  may  have  jurors  summoned  through  the  sheriff 
and  constitute  the  panel  for  the  week  in  that  way.22 

'*>  Howard  Oil  Co.  v.  Davis,  70  Texas,  030,  13  S.  W.,  005. 

21  Daniel  v.  Bridges,  73  Texas,  153,  11  S.  W.,  121. 

22  Smith  v.  Bates,  28  S.  W.,  04 ;  H.  E.  &  W.  T.  Ry.  Co.  v.  Vinson,  38  S.  W., 
540;  W.  U.  Tel.  Co.  v.  Everheart,  10  Texas  Civ.  App.,  472,  32  S.  W.,  90. 


94  ORGANIZATION    OF   DISTRICT   AND    COUNTY    COURTS. 


THE  CLERK. 

In  each  county  in  the  State  having  eight  thousand  or  over  inhabitants, 
the  offices  of  district  clerk  and  county  clerk  are  separate,  and  at  each 
general  election  the  qualified  voters  elect  a  person  to  each  of  these  posi- 
tions. In  counties  having  less  than  eight  thousand  inhabitants  the  offices 
are  filled  by  the  same  party,  though  he  is  required  to  qualify  and  give 
separate  bond  in  each  capacity.  In  each  court  the  clerk  is  the  keeper 
of  the  records ;  he  prepares  all  dockets  and  keeps  the  minutes  of  the  court. 
He  also  receives  and  files,,  and  is  the  custodian  of  all  file  papers  in  all 
cases  pending  or  tried  in  his  court.  He  is  the  keeper  of  the  records 
and  seal  of  the  court,  and  he  alone  can  give  certified  copies  of  the  records 
in  his  office  including  all  file  papers  and  the  minutes  of  every  kind.  He 
makes  and  certifies  to  all  transcripts  in  appeals  and  writs  of  error.  He 
issues  all  process  of  every  kind  emanating  from  the  court,  makes  out  the 
lists  of  the  jurors,  and  swears  the  witnesses. 


THE  SHERIFF. 

In  each  county  there  is  a  sheriff  elected  every  two  years,  among  whose 
duties  it  is  to  execute  all  process  properly  directed  to  him  from  the 
courts  of  his  county  or  elsewhere  throughout  the  State,  and  to  carry  out 
the  verbal  orders  of  the  court,  as  in  summoning  jurors,  etc.  He  is  the 
custodian  of  all  persons  in  the  hands  of  the  court  either  on  criminal 
charges,  for  contempt,  or  while  under  the  rule  as  witnesses,  or  while  serv- 
ing on  a  jury,  or  for  any  other  reason.  He  must  keep  order  in  and  about 
the  court,  and,  in  short,  is  the  hand  of  the  court,  with  which  it  puts  into 
actual  effect  the  orders  and  judgments  on  which  the  judge  as  head  may 
determine. 


ATTORNEYS  AT  LAW. 

Attorneys  at  law  are  officers  of  the  courts  in  which  they  practice,  sub- 
ject, in  a  large  measure,  to  the  control  of  the  judge.  Their  functions  are 
very  important,  and  upon  them  and  their  probity  of  conduct  depends  in  a 
large  measure  the  practical  success  of  the  government's  effort  to  admin- 
ister justice.  Their  proper  relation  to  the  court  is  that  of  assistants  in 
its  efforts  to  discover  the  truth  both  as  to  the  law  and  facts  of  cases  being 
heard.  Upon  them  devolves  almost  exclusively  the  preparation  of  cases 
for  hearing  and  the  actual  conduct  of  the  investigation.  They  should 
always  be  honest,  candid,  prompt,  and  energetic  in  the  discharge  of  their 
duties. 


TERMS   OF    COURT.  95 


TERMS  OP  COURT. 

It  is  essential  to  the  performance  of  the  duties  of  a  court  that  there 
should  be  a  judge,  a  clerk,  and  a  sheriff  in  attendance,  and,  in  those  cases 
in  which  parties  are  entitled  to  a  jury  and  one  has  been  demanded,  jurors 
also.  The  law  fixes  the  times  and  places  of  the  meeting  together  of 
these  officers  and  the  organization  of  the  court  for  holding  sessions  for  the 
hearing  of  causes.  In  the  case  of  the  district  court  the  Constitution  fixes 
the  place  of  holding  at  the  county  seat  of  the  county. 

This  is  mandatory  and  can  not  be  changed  by  the  Legislature. 

The  Constitution  also  provides  that  there  shall  be  at  least  two  terms 
of  the  district  court  in  each  organized  county  each  year.  There  may  be 
more. 

The  Legislature  can  require  the  holding  of  other  regular  terms  if  it 
sees  fit,  and  if  the  work  of  the  court  can  not  be  done  in  the  regular 
terms  provided  for  by  the  Legislature,  the  district  judge  may,  by  written 
order  made  during  regular  term  time  and  entered  on  the  minutes,  pro- 
vide for  the  holding  of  a  special  term  for  trying  cases  then  pending  in 
the  court  and  named  in  the  order.  No  new  cases  can  be  brought  to  such 
special  term,  nor  can  any  case  not  specified  in  the  order  be  tried  therein. 
Juries  may  be  provided  for  the  special  term  and  cases  be  tried  by  the.m. 

The  place  for  holding  the  county  court  is  also  at  the  county  seat.  The 
times  of  meeting  are  fixed  by  the  commissioners  court  of  the  county, 
but  they  must  have  as  many  as  four  sessions  each  year. 

If  the  regular  judge  does  not  attend,  a  special  one  is  procured  as  set 
out  above.  If  the  clerk  or  sheriff  is  not  present  either  in  person  or  by 
deputy,  the  judge  appoints  some  one  to  fill  the  place.' 

When  the  court  is  organized  for  the  term  in  legal  contemplation  it  re- 
mains in  session  until  the  final  adjournment.  It  takes  recesses  at  the 
convenience  of  the  officers  and  persons  in  attendance,  but  the  term  con- 
tinues until  all  the  business  is  disposed  of  and  adjournment  is  had,  or 
until  the  time  fixed  for  the  end  of  the  term  shall  arrive.  If  the  court  is 
once  regularly  adjourned  for  the  term,  it  can  not  lawfully  be  reopened  for 
that  term.  The  length  of  time  which  the  court  may  remain  in  session 
at  any  term  is  often  fixed  by  statute.  In  such  cases,  the  court  is  adjourned 
by  operation  of  law<  when  the  time  expires,  and  it  can  lawfully  do  nothing 
thereafter  until  the  next  term  arrives. 

The  exact  place  in  the  county  seat  in  which  the  court  shall  convene, 
that  is,  the  house  and  room,  are  left  to  the  commissioners  court,  but  if  no 
place  were  provided,  the  judge  could  hold  at  some  place  in  the  county 
seat  as  convenient  as  the  circumstances  would  admit. 

An  attempted  court  held  at  a  time  or  place  not  authorized  by  law  is 
a  nullity. 


96  CIVIL    JURISDICTION    OF   DISTRICT   AND    COUNTY   COURTS. 

CHAPTER  VI. 

CIVIL  JURISDICTION  OF  DISTRICT  AND  COUNTY  COURTS. 

As  a  court  is  a  special  agency  of  the  sovereign,  it  has  authority  to  act 
for  its  principal  only  in  such  matters  as  having  been  lawfully  committed 
to  it.  Jurisdiction  to  hear  and  determine  one  class  of  cases  does  not 
carry  with  it  jurisdiction  over  others  of  a  different  nature.  It  is  there- 
fore highly  important  to  ascertain  the  extent  to  which  the  sovereign  has 
authorized  the  several  courts  created  by  it  to  act  for  it.  As  to  all  matters 
properly  committed  to  any  one  of  these  courts,  its  final  adjudication  is 
binding  and  conclusive ;  as  to  any  other  matter,  its  decision  is  extrajudical 
and  void. 

Article  5,  section  1,  of  the  present  Constitution,  adopted  in  September, 
1891,  is  as  follows: 

"Section  1.  The  judicial  power  of  this  State  shall  be  vested  in  one 
Supreme  Court,  in  courts  of  civil  appeals,  in  courts  of  criminal  appeals, 
in  district  courts,  in  county  courts,  in  commissioners  courts,  in  courts  of 
justices  of  the  peace,  and  in  such  other  courts  as  may  be  provided  by  law." 

The  Court  of  Criminal  Appeals,  having  no  civil  jurisdiction,  does  not 
come  within  the  scope  of  this  work. 

This  chapter  will  be  confined  to  the  civil  jurisdiction  of  the  district  and 
county  courts,  not  taking  into  consideration  the  jurisdiction  of  the 
Supreme  Court,  courts  of  civil  appeals,  probate,  justices'  and  commis- 
sioners courts, — except  as  these  may  be  involved  in  a  discussion  of  the 
district  and  county  courts. 

CONSTITUTIONAL    PROVISIONS     REGARDING    DISTRICT 
COURTS. 

"Art.  5,  Sec.  7.  The  State  shall  be  divided  into  as  many  judicial  dis- 
tricts as  may  now  or  hereafter  be  provided  by  law,  which  may  be  in- 
creased of  diminished  by  law.  For  each  district  there  shall  be  elected 
by  the  qualified  voters  thereof,  at  a  general  election,  a  judge,  who  shall 
be  a  citizen  of  the  United  States  and  of  this  State,  who  shall  have  been  a 
practicing  lawyer  of  this  State  or  a  judge  of  a  court  of  this  State  for  four 
years  next  preceding  his  election;  who  shall  have  resided  In  the  district 
in  which  he  was  elected  for  two  years  next  preceding  his  election;  who 
shall  reside  in  his  district  during  his  term  of  office;  who  shall  hold  his 
office  for  the  period  of  four  years,  and  shall  receive  for  his  services  an 
annual  salary  of  two  thousand  five  hundred  dollars,  until  otherwise 
changed  by  law.  He  shall  hold  the  regular  terms  of  his  court  at  the 
county •  seat  of  each  county  in  his  district  at  least  twice  in  each  year,  in 


CONSTITUTIONAL    PROVISIONS,,   DISTRICT    COURT.  97 

such  manner  as  may  be  prescribed  by  law.  The  Legislature  shall  have 
power  by  general  or  special  laws  to  authorize  the  holding  of  special  terms 
of  the  court,  or  the  holding  of  more  than  two  terms  in  any  county  for 
the  dispatch  of  business.  The  Legislature  shall  also  provide  for  the  hold- 
ing of  district  court  when  the  judge  thereof  is  absent,  or  is  from  any 
cause  disabled  or  disqualified  from  presiding.  The  district  judges  who 
may  be  in  office  when  this  amendment  takes  effect  shall  hold  their  offices 
until  their  respective  terms  shall  expire  under  their  present  election  or 
appointment. 

"Sec.  8.  The  district  courts  shall  have  original  jurisdiction  in  all 
criminal  cases  of  the  grade  of  felony;  in  all  suits  in  behalf  of  the  State 
to  recover  penalties,  forfeitures,  and  escheats ;  of  all  cases  of  divorce ;  of 
all  misdemeanors  involving  official  misconduct;  of  all  suits  to  recover 
damages  for  slander  or  defamation  of  character ;  of  suits  for  trial  to  title 
to  land  and  for  the  enforcement  of  liens  thereon;  of  all  suits  for  the 
trial  of  the  right  of  property  levied  upon  by  any  writ  of  execution, 
sequestration,  or  attachment,  when  the  property  levied  on  shall  be  equal 
to  or  exceed  five  hundred  ($500)  dollars;  of  all  suits,  complaints,  or 
pleas  whatever,  without  regard  to  any  distinction  between  law  and  equity, 
when  the  matter  in  controversy  shall  be  valued  at  or  amount  to  five 
hundred  dollars,  exclusive  of  interest;  of  contested  elections;  and  the 
said  courts  and  the  judges  thereof  shall  have  power  to  issue  writs  of 
habeas  corpus,  mandamus,  injunction,  and  certiorari  and  all  the  writs 
necessary  to  enforce  their  jurisdiction.  The  district  court  shall  have 
appellate  jurisdiction  and  general  control  in  probate  matters  over  the 
county  court  established  in  each  county,  for  appointing  guardians,  grant- 
ing letters  testamentary  and  of  administration,  probating  wills,  for 
settling  the  accounts  of  executors,  administrators,  and  guardians,  and 
for  the  transaction  of  all  business  appertaining  to  estates;  and  original 
jurisdiction  and  general  control  over  executors,  administrators,  minors, 
and  guardians,  under  such  regulations  as  may  be  prescribed  by  law. 
The  district  court  shall  have  appellate  jurisdiction  and  general  super- 
visory control  over  the  county  commissioners  court,  with  such  excep- 
tions and  under  such  regulations  as  may  be  prescribed  by  law ;  and  shall 
have  general  original  jurisdiction  over  all  causes  of  action  whatever  for 
which  a  remedy  or  jurisdiction  is  not  provided  by  law  or  this  Constitu- 
tion, and  such  other  jurisdiction,  original  and  appellate,  as  may  be  pro- 
vided by  law." 


STATUTORY  PROVISIONS  REGARDING  DISTRICT  COURTS. 


"Art.  S-&08.  The  district  court  shall  have  original  jurisdiction  in 
civil  cases  — 

"1.  Of  all  suits  in  behalf  of  the  State  to  recover  penalties,  forfeitures, 
and  escheats. 

"2.     Of  cases  of  divorce. 

7  —  Pleading 


98  CIVIL    JURISDICTION    OF   DISTEICT   AND   COUNTY    COURTS. 

"3.  Of  all  suits  to  recover  damages  for  slander  or  defamation  of 
character. 

"4.  Of  suits  for  the  trial  of  title  to  land  and  for  the  enforcement 
of  liens  thereon. 

"5.  Of  all  suits  for  trial  of  right  to  property  levied  on  by  virtue  of 
any  writ  of  execution,  sequestration  or  attachment,  when  the  property 
levied  on  shall  be  equal  to  or  exceed  in  value  five  hundred  dollars;  and 

"6.  Of  all  suits,  complaints  or  pleas  whatever,  without  regard  to  any 
distinction  between  law  and  equity,  when  the  amount  in  controversy  shall 
be  valued  at  or  amount  to  five  hundred  dollars  exclusive  of  interest. 

"7.    Of  contested  elections. 

"Art.  1099.  The  district  court  shall  also  have  appellate  jurisdiction 
and  general  control  in  probate  matters  over  the  county  court  established 
in  each  county  for  appointing  guardians,  granting  letters  testamentary 
and  of  administration,  probating  wills,  for  settling  the  accounts  of  exec- 
utors, administrators,  and  guardians,  and  for  the  transaction  of  busi- 
ness appertaining  to  estates.  The  district  court  shall  also  have  such 
original  jurisdiction  and  general  control  over  executors,  administrators, 
guardians,  and  minors  as  is  or  may  be  provided  by  law.  Such  court 
shall  also  have  such  appellate  jurisdiction  and  general  control  over  the 
county  commissioners  court,  with  such  exception  and  under  such  regula- 
tions as  may  be  prescribed  by  law;  and  shall  have  general  original 
jurisdiction  over  all  causes  of  action  whatever  for  which  a  remedy  or 
jurisdiction  is  not  provided  by  law  or  the  Constitution,  and  such  other 
jurisdiction,  original  and  appellate,  as  may  be  provided  by  law. 

"Art.  1100.  The  district  court  shall  also  have  power  to  hear  and 
determine  all  motions  against  sheriffs  and  other  officers  of  the  court  for 
failure  to  pay  over  moneys  collected  under  the  process  of  said  court,  or 
other  defalcation  of  duty  in  connection  with  such  process,  and  of  motions 
against  attorneys  for  moneys  collected  by  them  and  not  paid  over. 

"Art.  1101.  The  district  court  shall  also  have  power  to  punish  by 
fine  not  exceeding  one  hundred  dollars,  and  by  imprisonment  for  not 
exceeding  three  days,  any  person  guilty  of  contempt  of  such  court." 

"Art.  1106.  Subject  to  the  limitations  stated  in  this  chapter,  the 
district  court  is  authorized  to  hear  and  determine  any  cause  which  is  or 
may  be  cognizable  by  courts,  either  of  law  or  equity,  and  to  grant  any  relief 
which  could  be  granted  by  said  courts,  or  either  of  them." 

"Art.  1110.  In  addition  to  the  foregoing  powers  and  jurisdiction, 
the  district  courts  and  the  judges  thereof  shall  have  such  authority  as 
is  or  may  be  vested  in  them  by  law." 


CONSTITUTIONAL     PROVISIONS     REGARDING     COUNTY 
COURTS. 

"Art.  5,  Sec.  15.     There  shall  be  established  in  each  county  of  this 
-State  a  county  court,  which  shall  be  a  court  of  record;  and  there  shall 


CONSTITUTIONAL  PROVISIONS,  COUNTY  COURTS.  99 

be  elected  in  each  county  by  the  qualified  voters  a  county  judge,  who 
shall  be  well  informed  in  the  law  of  the  State,  shall  be  a  conservator  of 
the  peace,  and  shall  hold  his  office  for  two  years,  and  until  his  successor 
shall  be  elected  and  qualified.  He  shall  receive  as  a  compensation  for 
his  services  such  fees  and  perquisites  as  may  be  prescribed  by  law. 

"Sec.  16.  The  county  court  shall  have  original  jurisdiction  of  all 
misdemeanors  of  which  exclusive  original  jurisdiction  is  not  given  to 
the  justice's  court  as  the  same  is  now  or  may  hereafter  be  prescribed 
by  law,  and  when  the  fine  to  be  imposed  shall  exceed  two  hundred  dollars ; 
and  they  shall  have  exclusive  jurisdiction  in  all  civil  cases  when  the 
matter  in  controversy  shall  exceed  in  value  two  hundred  dollars  and 
shall  not  exceed  five  hundred  dollars  exclusive  of  interest,  but  shall  not 
have  jurisdiction  of  suits  for  the  recovery  of  land.  They  shall  have 
appellate  jurisdiction  in  cases  civil  and  criminal  of  which  justices' 
courts  have  original  jurisdiction,  but  of  such  civil  cases  only  when  the 
judgment  of  the  court  appealed  from  shall  exceed  twenty  dollars,  ex- 
clusive of  cost,  under  such  regulations  as  may  be  prescribed  by  law.  In 
all  appeals  from  justices'  courts  there  shall  be  a  trial  de  novo  in  the 
county  court,  and  appeals  may  be  prosecuted  from  the  final  judgment 
rendered  in  such  cases  by  the  county  court,  as  well  as  all  cases  civil 
and  criminal  of  which  the  county  court  has  exclusive  or  concurrent  or 
original  jurisdiction  in  civil  cases  to  the  Court  of  Civil  Appeals,  and  in 
such  criminal  cases  to  the  Court  of  Criminal  Appeals,  with  such  ex- 
ceptions and  under  such  regulations  as  may  be  prescribed  by  law.  The 
county  court  shall  have  the  general  jurisdiction  of  a  probate  court ;  they 
shall  probate  wills;  appoint  guardians  of  minors,  idiots,  lunatics,  per- 
sons non  compos  mentis,  and  common  drunkards;  grant  letters  testa- 
mentary and  of  administration;  settle  accounts  of  executors;  transact 
all  business  appertaining  to  deceased  persons,  minors,  idiots,  lunatics, 
persons  non  compos  mentis,  and  common  drunkards,  including  the 
settlement,  partition,  and  distribution  of  the  estates  of  deceased  per- 
sons; and  to  apprentice  minors  as  provided  by  law;  and  the  county 
court  or  judge  thereof  shall  have  power  to  issue  writs  of  injunction, 
mandamus,  and  all  writs  necessary  to  the  enforcement  of  the  jurisdic- 
tion of  said  court,  and  to  issue  writs  of  habeas  corpus  in  cases  where 
the  offense  charged  is  within  the  jurisdiction  of  the  county  court  or 
any  other  court  or  tribunal  inferior  to  said  court.  The  county  court 
shall  not  have  criminal  jurisdiction  in  any  county  where  there  is  a 
criminal  district  court  unless  expressly  conferred  by  law;  and  in  such 
counties  appeals  from  justices'  courts  and  other  inferior  courts  and 
tribunals  in  criminal  cases  shall  be  to  the  criminal  district  court,  under 
such  regulations  as  may  be  prescribed  by  law,  and  in  all  such  cases  an 
appeal  shall  lie  from  such  district  court  to  the  Court  of  Criminal  Ap- 
peals. When  the  judge  of  the  county  court  is  disqualified  in  any  case 
pending  in  the  county  court,  the  parties  interested  may  by  consent  ap- 
point a  proper  person  to  try  said  case,  or  upon  their  failing  to  do  so,  a 
competent  person  may  be  appointed  to  try  the  same  in  the  county  where 
it  is  pending,  in  such  manner  as  may  be  prescribed  by  law." 


100  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 


STATUTORY  PROVISIONS  REGARDING  COUNTY  COURTS. 

"Art.  1154.  The  county  court  shall  have  exclusive  original  jurisdic- 
tion in  civil  cases  when  the  matter  in  controversy  shall  exceed  in  value 
two  hundred  dollars  and  shall  not  exceed  five  hundred  dollars,  exclusive 
of  interest. 

"Art.  1155.  The  county  court  shall  have  concurrent  jurisdiction  with 
the  district  court  when  the  matter  in  controversy  shall  exceed  five 
hundred  and  not  exceed  one  thousand  dollars,  exclusive  of  interest. 

"Art.  1156.  The  county  court  shall  also  have  jurisdiction  to  enter 
final  judgment  on  all  forfeited  bonds  taken  in  criminal  cases  pending 
in  said  court. 

"Art.  1157.  The  county  court  shall  not  have  jurisdiction  of  any  suit 
to  recover  damages  for  slander  or  defamation  of  character,  nor  of  suits 
for  the  recovery  of  lands,  nor  of  suits  for  the  enforcement  of  liens  upon 
lands,  nor  of  suits  in  behalf  of  the  State  for  escheats,  nor  of  suits  for 
divorce,  nor  of  suits  for  the  forfeiture  of  the  charters  of  incorpora- 
tions and  incorporated  companies,  nor  of  suits  for  the  trial  of  rights  to 
property  levied  upon  by  virtue  of  any  writ  or  execution,  sequestration,  or 
attachment,  when  the  property  levied  on  shall  be  equal  to  or  exceed  in 
value  five  hundred  dollars. 

"Art.  1158.  The  county  court  shall  have  appellate  jurisdiction  in 
civil  cases  over  which  the  justices'  courts  have  original  jurisdiction, 
when  the  judgment  of  the  court  appealed  from  or  the  amount  in  con- 
troversy shall  exceed  twenty  dollars  exclusive  of  costs. 

"Art.  1159.  The  county  court  shall  also  have  power  to  hear  and 
determine  cases  brought  up  from  the  justices'  courts  under  certiorari 
under  the  provisions  of  the  title  relating  thereto. 

"Art.  1160.  The  county  court  shall  also  have  power  to  hear  and 
determine  all  motions  against  sheriffs  or  other  officers  of  the  court  for 
failure  to  pay  over  moneys  collected  under  the  process  of  said  court,  or 
other  defalcation  of  duty  in  connection  with  such  process. 

"Art.  1161.  The  county  court  shall  also  have  power  to  punish  by 
fine  not  exceeding  one  hundred  dollars,  and  by  imprisonment  not  ex- 
ceeding three  days,  any  person  guilty  of  contempt  of  said  court. 

"Art.  1162.  Subject  to  the  limitation  stated  in  this  chapter,  the 
county  court  is  authorized  to  hear  and  determine  any  cause  which  is  or 
may  be  cognizable  by  courts  either  of  law  or  equity,  and  to  grant  any 
relief  which  could  be  granted  by  said  courts  or  any  of  them. 

"Art.  1163.  The  county  judge  shall  have  authority,  either  in  term 
time  or  in  vacation,  to  grant  writs  of  mandamus,,  injunction,  sequestra- 
tion, attachment,  garnishment,  certiorari,  and  supersedeas,  and  all  other 
writs  necessary  to  the  enforcement  of  the  judisdiction  of  the  courts." 

"Art.  1165.  In  addition  to  the  foregoing  powers  and  jurisdiction, 
the  county  court  and  the  county  judge  shall  have  such  authority  as  is 
or  may  be  vested  in  them  by  law." 


DISTRICT    COURT — DETAILED    CONSIDERATION.  101 

The  foregoing  embrace  all  the  constitutional  and  statutory  provisions 
conferring  jurisdiction  on  the  district  and  county  courts  as  such.  The 
Legislature  has  taken  from  the  county  courts  of  a  number  of  counties 
some  of  the  jurisdiction  pertaining  to  those  courts  as  a  class  and  con- 
ferred it  on  the  district  courts  of  the  respective  counties.  These  acts 
being  local  in  their  effect,  can  not  profitably  be  referred  to  here. 

The  jurisdiction  of  the  district  and  county  courts  is  so  closely  related 
that  it  is  impracticable  to  treat  them  separately,  and  we  will  consider  them 
together,  taking  the  constitutional  and  statutory  provisions  regarding  the 
district  court  as  the  basis  of  our  discussion,  and  referring  to  the  cor- 
responding provisions  regarding  the  county  court  when  it  may  eeem 
necessary.  We  will  then  take  up  the  provisions  which  are  applicable 
alone  to  the  county  court. 

It  is  a  general  principle,  and  one  which  has  been  uniformly  applied 
in  construing  our  Constitutions,  that,  where  jurisdiction  is  given  over 
cases  involving  designated  kinds  of  subject  matter,  the  grant  is  exclusive 
and  such  subject  matter,  without  reference  to  its  value,  must  be  litigated 
in  the  court  designated,  unless  a  contrary  intent  is  shown  in  the  con- 
text. This  principle  is  important,  because  the  word  "exclusive"  and 
terms  of  similar  import  are  rarely  found  in  our  constitution. 

DISTRICT  COURT-DETAILED  CONSIDERATION. 

"The  District  Court  Shall  Have  Original  Jurisdiction  of  all  Suits 
in  Behalf  of  the  State  to  Recover  Penalties,.  Forfeitures,  and 
Escheats." 

Suits  in  Behalf  of  the  State. 

These  words  have  been  construed  in  several  cases,  where  suits  were 
brought  upon  statutory  bonds  taken  in  the  name  of  the  State,  but  upon 
which  the  statute  provided  that  actions  might  be  maintained  either  by 
some  individual,  especially  injured  by  violation  of  the  conditions,  or  by 
the  State,  through  the  district  or  county  attorney,  for  the  benefit  of  the 
county.  The  first  of  these  cases  is  Grady  v.  Eogan,  decided  in  1884.1 

In  it  the  Court  of  Appeals  held  that  the  county  court  had  jurisdic- 
tion under  the  statute  as  it  then  sood;  but  after  the  act  of  1887,  the 
same  court  held  in  the  case  of  State  v.  Stoutsenberger2  that  the  county 
court  did  not  have  jurisdiction.  The  question  came  before  the  Supreme 
Court  in  the  case  of  State  v.  Eggerman,  decided  on  June  26,  1891. 3 
This  was  a  suit  on  a  five  hundred  dollar  bond,  begun  in  the  district 

1  2  Texas  App.  C.,  sec.  259. 

2  16  S.  W.,  304. 

3  81  Texas,  569..  16  S.  W.,  10G7. 


102  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

court  and  dismissed  by  that  court  for  lack  of  jurisdiction.  The  Su- 
preme Court,  through  Judge  Stayton,  says :  "It  is  contended  that  this 
is  not  a  suit  in  behalf  of  the  State,  and  this  proposition  seems  to  be 
based  upon  the  fact  that,  if  the  penalty  is  enforced,  it  will  inure  to  the 
benefit  of  Parker  county.  The  word  behalf  means  'in  the  name  of/ 
'on  account  of,'  'benefit,'  'advantage,'  'interest,'  'profit,'  'defense,'  'vindi- 
cation/ and  in  any  of  these  senses  this  is  evidently  within  the  meaning 
of  the  Constitution,  a  suit  in  behalf  of  the  State.  That  the  penalty, 
if  recovered,  will  inure  to  the  benefit  of  a  county  is  a  matter  of  no  im- 
portance ;  but  if  it  were  necessary  to  look  to  the  use  to  which  the  penalty 
would  be  applied,  if  collected,  in  order  to  determine  whether  such  suit 
were  in  behalf  of  the  State,  it  could  not  be  held  that  the  appropriation 
made  by  the  statutes  of  the  sum  to  be  collected,  or  penalties  under  it, 
was  not  for  the  benefit  of  the  State,  although  used  in  and  by  one  of 
its  municipal  subdivisions  for  purposes  in  which  people  of  the  State 
are  all  more  or  less  interested." 

There  is  no  later  case  on  the  subject. 

Penalties. 

The  case  of  Aulanier  v.  Governor4  decides  that  a  suit  to  recover 
one  hundred  dollars  penalty  for  selling  spirituous  liquors  without 
proper  license  was  within  the  exclusive  jurisdiction  of  the  district  court. 
It  further  holds  that  such  a  proceeding  begun  in  the  justice's  court  and 
appealed  to  the  district  court,  to  which  appeals  from  the  justices'  courts 
were  then  taken,  was  not  within  the  jurisdiction  of  the  district  court,  al- 
though the  trial  t.herein  was  de  novo;  for,  since  the  court  from  which 
the  appeal  was  taken  was  without  jurisdiction,  the  whole  proceeding  in 
both  courts  was  void.  In  the  case  of  State  v.  San  Miguel,5  the  court  of 
Civil  Appeals  of  the  Fifth  District  held  that  .the  district  court  had  juris- 
diction of  a  suit  by  the  State  for  two  hundred  dollars  penalty  for  breach 
of  a  peace  bond.  In  State  v.  Schuenemann,6  the  same  Court  of  Civil 
Appeals  reiterates  the  doctrine  that  a  suit  on  a  statutory  bond  is  for  a 
penalty,  and,  as  a  consequence,  holds  that  the  suit  abates  on  the  death 
of  the  principal  in  the  bond  and  can  not  be  prosecuted  further  against 
the  sureties  and  administrator  of  the  principal. 

Forfeitures. 

Our  Supreme  Court  has  adopted  this  definition  of  forfeiture.  "For- 
feiture is  where  a  person  loses  some  property,  right,  privilege,  or  benefit, 
in  consequence  of  having  done  or  omitted  to  do  a  certain  act."7 

Whatever  the  nature  or  value  of  the  "property,  right,  privilege,  or 

4 1  Texas,  667. 

5  4  Texas  Civ.  App.,  182,  23  S.  W.,  389. 

8  46  S.  W.,  260. 

7  State  v.  De  Gress,  72  Texas,  245,  US.  W.,  1028. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  103 

benefit"  may  be,  if  the  State  desires  to  have  its  loss  adjudged,  it  must 
bring  its  action  in  the  district  court.  The  most  frequent  exercise  of  this 
jurisdiction  is  as  to  the  franchises  and  rights  of  corporations  and  public 
offices.  The  statutes  regulating  proceedings  of  this  nature  are  quite  full. 
All  of  them  conform  to  the  Constitution  as  to  jurisdiction.  In  several 
instances  the  venue  is  fixed  in  Travis  County.  The  methods  of  pro- 
cedure under  these  will  be  further  considered  under  appropriate  heads. 
When,  under  the  State  statutes,  a  suit  is  brought  in  the  district 
court  of  the  State  to  forfeit  the  charter  of  a  domestic  corporation  the 
jurisdiction  of  the  court  is  not  ousted  by  subsequent  appointment  of  a 
receiver  of  the  property  of  such  corporation  by  a  Federal  court,  and 
actual  charge  and  possession  of  the  property  of  the  concern  by  the  re- 
ceiver.8 

Escheats. 

Anderson's  Law  Dictionary  gives  the  following  definition  of  escheat: 
"In  United  States,  a  reversion  of  property  to  the  State,  in  default 
of  a  person  who  can  inherit  it."  In  Hughes  v.  State,9  our  Supreme 
Court  says:  "Title  to  land  by  escheat  originated  in  and  was  a  con- 
sequence of  feudal  law,  whereby,  upon  failure  of  heirs  of  the  person 
last  seized,  who  may  lawfully  take  the  estate  by  succession,  it  fell 
back  or  reverted  to  the  original  grantor,  his  descendants,  or  successors. 
And,  as  under  the  general  doctrine  of  tenures  in  the  American  States, 
the  State  occupies  the  place  of  the  feudal  lord  by  virtue  of  its  sover- 
eignty, it  is  universally  asserted  that,  when  the  title  to  land  fails  for 
lack  of  heirs  or  devisees  who  may  lawfully  take,  it  reverts  or  escheats  to 
the  estate  as  property  to  which  it  is  entitled.  This  has  certainly  been 
the  law  of  tenure  in  Texas  from  the  organization  of  the  government." 

The  district  court  has  exclusive  jurisdiction  over  all  suits  for  de- 
termining the  existence  of  such  a  state  of  facts  as  shows  reversion  to  the 
State,  and  for  pronouncing  judgment  in  favor  of  the  State  thereon. 
This  jurisdiction  however,  can  only  be  exercised  in  the  manner  and 
under  the  conditions  prescribed  by  the  legislature.10 


Suits  for  Divorce. 

The  jurisdiction  of  the  district  court  is  in  these  cases  exclusive. 
Neither  the  Constitution  nor  the  laws  of  the  State  of  Coahuila  and 
Texas  expressly  conferred  upon  any  court  the  power  to  grant  divorces. 

8  Water  and  Power  Co.  v.  City  of  Palestine,  91  Texas,  540,  44  S.  W.,  815. 
•41  Texas,  17. 

10  Constitution  of  1876,  art.  XIII,  sec.  1;  Rev.  Stats.,  art.  1821,  et  seq. ;  Wieder- 
anders  v.  State,  64  Texas,  134. 


104  CIVIL    JURISDICTION   OF   DISTRICT   AND   COUNTY   COURTS. 

Nor  did  the  Constitution  of  the  Republic,  nor  any  act  of  Congress,  prior 
to  the  passage  of  the  Judiciary  Act  of  December  18,  1837.  The  last 
named  act  provided : 

"That  in  addition  to  the  powers  given  to  the  district  courts  by  the 
acts  establishing  the  powers  and  jurisdiction  thereof,  approved  Decem- 
ber twenty-second,  one  thousand  eight  hundred  and  thirty-six,  the  said 
district  courts  shall  have  power  to  hear  and  determine  all  suits  or 
actions  arising  between  the  husband  and  wife,  for  divorce  or  for  a  sepa- 
rate maintenance,  and  may  decree  divorces,  as  well  from^  the  bonds  of 
matrimony  as  from  bed  and  board,  or  for  a  separate  maintenance."11 

It  is  noticeable  that  there  is  in  this  act  no  specification  of  any  grounds 
for  divorce. 

The  first  divorce  suit  heard  in  our  Supreme  Court  is  Andrews  v. 
Andrews,12  decided  January  term,  1840.  The  report  of  the  case  does 
not  show  when  the  suit  was  instituted,  but  in  the  opinion  the  act  above 
referred  to  is  cited  and  relied  upon. 

In  1841  an  act  was  passed,  which  was  very  full  and  explicit  in  its 
provisions  as  to  grounds  for  divorce.13  In  the  Constitution  of  1845,  the 
district  courts  are  given  original  jurisdiction  over  all  cases  of  divorce. 

In  the  case  of  Wright  v.  Wright,14  the  court  says :  "The  question  pre- 
sented is  whether  there  is  any  fact  well  pleaded  in  the  petition  which 
would  be  sufficient  in  law  to  dissolve  the  bonds  of  matrimony? 

"There  were  some  suggestions  in  the  argument  relative  to  the  extent 
of  the  powers  of  the  courts  over  matrimonial  causes,  which  will  not,  in 
this  case,  require  any  particular  examination.  The  statute  defines  the 
grounds  of  divorce;  and  whatever  diversity  of  opinion  may  be  entertained 
as  to  the  authority  of  a  district  court  to  annul  a  marriage  for  causes 
arising  antecedent  to  its  celebration  other  than  that  of  incurable  im- 
potency  which  is  expressed  in  the  statute,  it  will  be  conceded  that  for 
causes  subsequently  arising  the  power  of  the  court  is  restricted  to  the 
grounds  prescribed  in  the  statute." 

There  is  a  very  full  discussion  of  matters  of  divorce  in  the  case  of 
Sharman  v.  Sharman,15  decided  in  1857.  In  this  opinion,  the  Spanish 
laws  on  the  subject  are  given  and  their  inapplicability  to  the  conditions 
and  jurisprudence  of  Texas  after  its  independence  are  pointed  out. 
The  statement  is  made  that  under  the  Eepublic,  and  prior  to  the  Act  of 
1837,  divorces  were  probably  granted  by  district  courts;  but  the  matter 
is  not  definitely  determined.  The  Act  of  1837  is  contrasted  with  that 
of  1841,  and  it  is  decided:  "That  this  latter  act  has  been  understood 
as  defining  and  presenting  the  cases  in  which  divorce  should  be  granted, 

11  Acts  of  1837,  sec.  2,  p.  95. 

"Dall.,  375. 

13  Acts  of  Congress,  1841,  p.  19,  et  seq. 

J46  Texas,   15    (1851). 

15 18  Texas,  522. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  105 

and  it  is  construed  that  grant  of  jurisdiction  in  the  State  Constitution 
over  cases  of  divorce  does  not  enlarge  the  power  given  by  statute." 

The  Act  of  1841,  although  it  has  undergone  some  modifications,  is 
the  basis  of  our  present  statute ;  and  the  general  principle  that  the  ex- 
pression of  the  legislative  will  that  divorces  may  be  granted  for  specified 
causes  is  a  denial  of  the  right  of  the  court  to  grant  for  other  causes,  has 
ever  since  been  recognized.16 


Slander  and  Defamation  of  Character. 

Exclusive  jurisdiction  over  civil  suits  for  slander  and  libel  was  first 
given  to  the  district  court  by  amendments  made  to  the  Constitution  in 
1861.  Prior  to  that  time,  the  jurisdiction  of  such  cases  depended  upon 
the  amount  of  damage  claimed;  since  that  the  jurisdiction  has  been 
exclusively  in  the  district  court.  These  terms,  slander  and  defamation 
of  character,  are  used  in  the  ordinary  legal  sense  including  both  oral 
defamation  and  libel,  and  require  no  special  elucidation.  "Damages," 
of  course,  refers  to  compensation  to  be  made  to  the  injured  party,  re- 
coverable in  a  civil  suit.  Prosecutions  for  criminal  slander  and  libel 
must  be  instituted  in  the  county  court. 

The  Trial  of  Title  to  Land. 

No  equivalent  clause  appears  in  any  Constitution  of  Texas  earlier 
than  the  amended  Constitution  of  1866,  in  which  the  language  used 
is,  "all  suits  for  the  trial  of  title  to  land,"  identical  with  the  present 
terms  except  the  omission  of  the  article  before  the  word  "trial." 
This  jurisdiction,  however,  has  been  exclusively  in  the  district  courts 
since  the  organization  of  the  Kepublic.  While  the  Constitution  of 
the  Eepublic  was  silent  on  the  subject,  and  while  the  district  court 
acts  did  not,  in  express  terms,  give  exclusive17  cognizance  of  such 
suits  to  the  courts  therein  established,  the  grant  of  authority  is 
broad  enough  to  include  it,  and  did,  in  fact,  do  so.  By  the  sixth  section 
of  the  county  court  act,  passed  at  the  same  session  of  Congress,  juris- 
diction of  such  cases  was  expressly  denied  to  the  county  court.  There 
were  no  county  courts  organized  under  the  Constitution  of  1845  with 
any  civil  jurisdiction  except  in  probate  matters;  and  except  for  a  short 
time,  under  the  Constitution  of  1866,  no  such  courts  existed  until  after 
the  Constitution  of  1876  went  into  effect.  I  have  found  no  case  de- 
cided during  the  existence  of  the  Eepublic  in  which  this  clause  is  con- 

16  Rev.  Stats.  1895,  art.  2976,  et.  seq. 

17  Laws  of  the  First  Congress,  p.  200. 


106  CIVIL   JURISDICTION   OF   DISTRICT   AND   COUNTY    COURTS. 

sidered.     The  numerous  and  interesting  decisions  construing  it  are  all 
comparatively  recent. 

Two  important  questions  are  presented:  First,  what  is  land;  and  sec- 
ond, what  character  of  suits  are  those  which,  in  legal  contemplation, 
are  for  the  trial  of  title  thereto  ? 

Land  Defined. 

No  definition  of  the  word  land,  made  with  direct  reference  to  this 
clause,  appears  in  our  reports.  In  Missouri  Pacific  Eailway  Com- 
pany v.  Cullers,18  in  passing  upon  the  powers  of  the  court  to 
adjudge  the  rights  of  the  parties  litigant  therein — the  cause  of  action 
having  arisen  in  the  Indian  Territory — it  became  necessary  to  determine 
the  exact  meaning  of  the  word.  The  court  adopted  the  definition  given 
by  Mr.  Tiedeman  in  his  work  on  Eeal  Property,  as  follows:  "Land  is 
the  soil  of  the  earth,  and  includes  everything  erected  upon  its  surface 
cr  which  is  buried  beneath  it.  Under  the  term  land,  therefore,  are  in- 
cluded the  buildings  made  so  under  the  doctrine  of  accession.  *  * 
The  general  rule  of  law  is  that  a  permanent  annexation  to  the  soil  of  a 
thing  in  itself  personal  makes  it  a  part  of  the  realty.  The  rule  applies 
in  some  cases  even  where  the  thing  annexed  is  the  personal  property 
of  another.  Thus,  if  a  stranger  erects  a  building  upon  the  land  of  an- 
other, having  no  estate  therein,  the  building  becomes  the  property  of  the 
owner  of  the  soil.  *  *  *  But  if  such  erection  is  in  pursuance  of  a 
license  granted  by  the  owner  of  the  soil,  the  annexation  will  not  make 
the  building  or  structure  a  part  of  the  realty."  In  the  case  of  Irrigation 
Ditch  Company  v.  Hudson,19  the  meaning  of  this  word  in  the  statute 
providing  for  the  condemnation  of  land  for  the  benefit  of  irrigation 
companies,  is  given  by  the  court  as  follows:  "The  word  land  includes 
not  only  the  soil,  but  everything  attached  to  it,  whether  by  course  of 
nature,  as  trees,  herbage  and  water,  or  by  the  hand  of  man,  as  buildings 
and  fences." 

Whether  or  not  fixtures  are  a  part  of  the  realty  is  a  mixed  question 
of  law  and  fact  to  be  determined  in  each  case  by  the  relation  of  the 
parties,  who  erect  or  attach  same  as  well  to  each  other  as  to  the  land, 
and  also  by  the  intent  with  which  the  attachment  is  made.20 

Land  also  includes  easements.21    As  defined  by  these  authorities,  land 

18  81  Texas,  390,  17  S.  W.,  19. 

18  Irrigation  Ditch  Co.  v.  Hudson,  85  Texas,  592,  22  S.  W.,  398. 

20Hutchins  v.  Masterson,  46  Texas,  554;  Moody  v.  Aiken,  50  Texas,  72;  Sinker, 
Davis  &  Co.  v.  Comparet.  62  Texas,  476;  Cullers  v.  Jones,  66  Texas,  498;  Jones  v. 
Bull.  85  Texas,  139,  19  S.  W..  103;  Railway  Co.  v.  Dunman,  85  Texas,  182,  19 
S.  W.,  1073;  Railway  Co.  v.  Dumnan,  33  S."  W.,  1025;  Railway  Co.  v.  Dunman, 
35  S.  W.,  947. 

21  Brown  v.  Poland,  1  W.  &  W.  C  .C.,  sec.  1022 ;  Shepard  v.  Railway  Co.,  2  Texas 
Civ.  App.,  579. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  107 

is  equivalent  to  real  property  and  may  be  taken  as  comprising  all  those 
material  substances  which  constitute  the  earth's  surface,  including  the 
soil,  rocks,  minerals,  oils,  and  other  substances  in  the  ground;  water  in 
or  standing  on  it;  trees  and  other  natural  vegetation  attached  to  #te 
soil;  all  permanent  improvements  and  structures  erected  on  the  soil  by 
the  owner  or  others,  with  the  intent  to  permanently  attach  the  same  to 
the  soil  and  make  it  a  part  of  the  realty;  and  all  easements — but  not 
privileges  in  land  of  another  enjoyed  under  license  merely  and  not  con- 
stituting easements. 

Trial  of  Title. 

The  language  used  in  the  Constitution  denying  this  jurisdiction  to 
county  courts  is,  "suits  for  the  recovery  of  land."  The  decisions  are  not 
entirely  harmonious  as  to  the  proper  construction  of  these  clauses,  but 
by  careful  comparison  it  may  be  possible  to  reach  a  correct  general  rule. 

Nearly  all  the  decisions  upon  this  question  are  by  the  Court  of  Ap- 
peals, under  the  Constitution  of  1876,  and  the  Courts  of  Civil  Appeals, 
under  the  Constitutional  Amendment  of  1891.  No  provision  was  made 
for  review  by  the  Supreme  Court  of  the  decisions  of  the  first  of  these 
courts  on  any  matters,  and  none  for  review  of  judgments  by  the  second 
in  appeals  to  them  from  the  judgments  of  county  courts,  consequently 
these  questions  rarely  come  before  the  Supreme  Court.  There  are,  how- 
ever, one  or  two  decisions  on  the  subject  by  that  tribunal. 

The  first  case  on  these  questions  is  Greenwood  v.  Walls,  decided  by 
the  Court  of  Appeals,  February  2,  1881. 22  The  whole  opinion  on  the 
subject  is:  "The  county  court  has  no  jurisdiction  of  a  suit  to  remove 
cloud  from  title  to  land." 

Bean  v.  Toland,  decided  by  the  same  court  on  March  9,  1881,23  holds 
that  ordinarily  a  house  built  upon  land  becomes  part  of  the  realty,  and 
if  in  any  case  circumstances  exist  which  prevent  the  operation  of  this 
general  rule  and  cause  the  house  to  be  personalty,  such  circumstances 
must  be  averred  in  a  suit  in  the  county  court,  asserting  title  to  the 
house,  otherwise  the  court  will  not  have  jurisdiction.  In  the  course  of 
the  opinion  the  court  says :  "The  value  of  the  land  in  controversy  is  im- 
material. Whatever  may  be  its  value,  when  the  title  is  to  be  passed 
upon  and  determined,  the  county  court  has  no  jurisdiction,  and  should 
it  assume  the  power,  its  adjudication  in  such  case  would  be  coram  non 
judice  and  void." 

Scripture  v.  Hunt24  gives  an  exhaustive  discussion  of  this  subject. 
It  takes  up  the  several  statutory  and  constitutional  provisions  re- 

22  1  W.  &  W.  C.  C.,  sec.  116. 
23 1  W.  &  W.  C.  C.,  sec.  1022. 
21  Id.,  1056. 


108  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 

garding  jurisdiction  of  the  district  courts  as  to  these  matters,  and  after 
comparison  concludes  that  the  terms  used  in  the  constitutional  grant 
of  authority  to  the  district  court,  viz.,  "trial  of  title  to  land/'  and  in 
the  denial  to  the  county  court  of  jurisdiction  over  "suits  for  recovery  of 
land,"  are  legally  equivalent. 

In  Cross  v.  Peterson25,  decided  on  June  22,  1881,  the  same  court 
ruled  that  a  homestead  right  or  claim  in  property  was  a  "title  to  land" 
within  the  meaning  of  the  Constitution,  and  hence  a  county  court  could 
not  grant  an  injunction  to  protect  such  a  claim  from  forced  sale. 

In  Gulf,  Colorado  &  Santa  Fe  Railway  Company  v.  Graves,26  decided  on 
October  25,  1882,  a  distinction  is  made  between  a  suit  to  determine  and 
adjudge  title  to  land  and  easements,  and  a  suit  to  recover  damages  for 
injury  to  the  land  or  easement.  While  jurisdiction  is  denied  to  the 
county  court  in  the  former,  it  is  sustained  in  the  latter. 

In  Owens  v.  Prather,27  decided  June  8,  1881,  this  language  is  used: 
"The  Constitution  says  the  county  court  shall  not  have  jurisdiction  of 
'suits  for  the  recovery  of  land,'  but  that  would  not  deprive  them  of  the 
right  to  try  suits  for  trespasses  upon  land,  or  cutting  and  removing 
timber  from  it,  or  for  rent  or  use  and  occupation  of  it.  In  suits  of  this 
character  it  may  be  very  material  for  the  party  to  prove  his  title  to  the 
land,  that  he  may  recover  for  the  trespass  or  the  damages,  but  he  does 
not  sue  for  or  recover  the  land,  nor  does  any  judgment  which  may  be 
rendered  in  the  county  court  determine  his  right  to  the  land,  or  in  the 
least  affect  the  title  to  it." 

In  Porter  v.  Porter  Bros.,28  decided  November  12,  1884,  was  presented 
the  question,  has  the  county  court  jurisdiction  to  determine  whether 
the  amount  due  on  an  insurance  policy  on  a  homestead  which  has 
burned  can  be  garnisheed  or  is  exempt  from  such  process?  It  was 
held  that  the  court  had  jurisdiction,  and  the  following  propositions  on 
the  subject  were  announced : 

1.  When  the  original  suit  as  brought  shows  an  action  that  necessarily 
involves  the  question  of  title  to  real  estate,  the  county  court  has  no 
jurisdiction. 

2.  When  the  issues  raised  are  not  dependent  on  the  issues  of  title, 
but  on  other  rights,  such  as  the  character  of  possession  of  real  property, 
the  county  court  has  jurisdiction. 

3.  When  the  contest  is  over  other  matters  incidentally  dependent 
upon  the  question  of  title  the  county  court  has  jurisdiction. 

The  accuracy  of  the  first  of  these  statements  in  the  light  of  subse- 
quent decisions  is  very  doubtful. 

25  Id.,  1061. 

28  Id.,  579. 

27  Owens  v.  Prather,  Id.,  1131. 

2S  Porter  v.  Porter  Bros.,  2  Willson  C.  C.,  433. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  109 

Gulf,  Colorado  &  Santa  Fe  Eailway  Company  v.  Thompson,  29  decided 
February  25,  1885,  is  a  suit  for  damages  to  an  easement.  The  court 
says:  "The  cases  of  Gascamp  v.  Drews  and  of  Scripture  v.  Kent  were 
suits  to  recover  or  impose  easements  upon  land;  but  such  is  not  the 
nature  of  the  relief  sought  in  this  action.  This  is  not  on  a  claim  'to 
recover'  land,  but  to  recover  damages  for  injury  done  to  land,  and  in 
such  cases  the  county  court  has  jurisdiction  where  the  amount  claimed 
is  within  the  jurisdiction." 

Harvey  v.  Milliken,30  decided  May  31,  1884,  is  an  interesting  discus- 
sion of  the  question  whether  or  not  a  house  is  realty. 

Bohl  v.  Brown,31  decided  February  14,  1885,  holds  that  a  suit  to  fore- 
close a  mortgage  upon  a  house  erected  on  leased  land  is,  in  absence  of 
special  facts  showing  the  house  to  be  personalty,  a  suit  involving  the 
title  to  real  estate,  and  therefore  the  county  court  is  without  jurisdiction. 

Brown  v.  Brown,32  decided  January  27,  1886,  holds  that  in  an  action 
for  damages  to  realty  by  trespass  thereon  title  to  the  land  is  not  in- 
volved and  the  county  court  has  jurisdiction  where  the  amount  of  dam- 
ages is  between  two  hundred  and  one  thousand  dollars. 

Carter  Lumber  Company  v.  Crozier,33  decided  November  17,  1886,  is 
a  suit  in  which  attachment  was  levied  on  realty.  The  defendant  claimed 
that  the  real  estate  levied  on  under  the  attachment  was  his  homestead, 
and  therefore  exempt.  It  was  held  that  the  county  court  was  without 
jurisdiction  to  determine  this  plea. 

Hatch  v.  Allan  &  Swartz,34  decided  January  29,  1887,  holds  that, 
"That  which  is  claimed  in  the  petition  and  prayer  for  relief  must  de- 
termine the  character  of  the  suit  and  court  which  has  jurisdiction.  That 
a  question  as  to  title  to  land  may  incidentally  arise  in  the  suit  will  not 
deprive  the  county  court  of  jurisdiction  in  a  suit  for  damages." 

Mahoney  v.  Lapouski  Bros.,35  decided  May  28,  1887,  holds  that  an 
agreement  between  parties  owning  adjoining  lots  that  one  will  build  a 
party  wall,  half  of  which  was  to  be  on  each  lot,  and  the  other,  at  such 
time  thereafter  as  he  should  build  to  the  wall,  would  pay  half  the  cost 
of  construction  thereof,  was  binding  in  equity  upon  the  party  agreeing 
to  pay  half  the  cost,  and  upon  his  assignees  who  took  the  property  with 
notice  and  built  to  the  wall ;  and  that  a  suit  to  recover  one  half  the  cost 
from  the  assignees  did  not  involve  the  title  to  the  land  and  the  county 
court  had  jurisdiction. 

29  G.  C.  &  S.  F.  E.y.  Co.  v.  Thompson,  2  Willson  C.  C.,  568. 
M  Harvey  v.  Milliken,  2  Willson  C.  C..  222. 

31  2  Willson  C.  C.,  485. 

32  3  Willson  C.  C.,  82. 

'•'Carter  Lumber  Co.  v.  Crozier,  3  Willson  C.  C.,  177. 
34  3  Willson  C.  C.,  229. 

33  Mahoney  &  Evans  v.  Lapouski  Bros.,  3  Willson  C.  C.,  307. 


110  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

Williams  v.  Fenit,36  decided  November  7,  1877,  holds  that  an  action 
for  breach  of  warranty  of  title  to  land  is  "neither  a  suit  for  the  recovery 
of  land,  nor  for  the  trial  of  title  to  land,  and  the  amount  sued  for  being 
within  the  jurisdiction  of  the  county  court,  suit  was  properly  brought 
in  that  court."  This  is  approved  in  McGregor  v.  Taylor,  April  25, 
1894 ;37  also  in  Patrick  v.  Laprelle.38 

In  Messer  v.  Bosselt,39  decided  March  5,  1892,  is  a  case  in  which  one 
of  the  parties  had  sold  to  the  other  a  tract  of  land  and  had  agreed,  as  a 
part  of  the  contract  of  sale,  to  resell  to  him  at  a  stipulated  price  or  to 
take  back  the  land  and  to  pay  him  the  amount  of  money  paid  for  the 
land  and  his  expenses.  This  contract  was  broken  by  the  vendor,  and 
the  vendee  tendered  a  reconveyance  of  the  land  and  repayment  of  the 
purchase  mone}r.  Defendant  pleaded  to  the  jurisdiction  of  the  county 
court  because  the  suit  involved  the  title  to  land,  and  that  court  sus- 
tained the  plea.  The  Court  of  Appeals  reversed  the  judgment,  holding 
that  the  county  court  had  jurisdiction. 

These  are  all  the  decisions  of  the  Court  of  Appeals  on  this  question. 
The  Court  of  Civil  Appeals  has  had  the  matter  under  consideration  a 
number  of  times,  and  their  decisions  do  not  seem  to  be  consistent.  They 
are  as  follows: 

Gentry  v.  Bowser  et  al.,40  decided  in  February,  1893,  is  a.  case  in  which 
the  defendant  was  the  head  of  a  family  and  had  a  country  homestead, 
to  which  was  permanently  attached  certain  machinery — gin,  steam  en- 
gine, etc.  He  gave  a  chattel  mortgage  on  this  machinery  to  secure  plain- 
tiff in  a  debt  of  two  hundred  and  seventy-one  dollars.  Suit  was 
brought  in  the  county  court  for  the  debt  and  foreclosure  of  mortgage. 
Defendant  pleaded  to  jurisdiction,  that  at  the  time  the  mortgage  was 
given  and  the  suit  brought  the  machinery  was  part  of  the  realty.  It 
was  held  that  the  plea  was  good  and  deprived  the  court  of  jurisdiction 
to  foreclose  the  mortgage. 

Edwards  v.  Heffly,41  decided  May  31,  1893,  is  a  suit  in  which  a  tract 
of  land  had  been  sold  by  the  plaintiffs,  and  thirteen  acres  of  it  was  re- 
cognized as  in  conflict  with  another  tract.  The  purchase  money  at  the 
rate  of  $8  per  acre  was  retained  by  the  vendee,  and  bond  given  "con- 
ditioned that  in  case  the  said  G.  W.  and  E.  A.  Heffly  (the  plaintiffs) 
maintained  their  title  and  possession  to  said  thirteen  acres  of  land,  and 
shall  place  the  said  Edwards  and  Wilkie  (defendants)  in  the  lawful  and 

36  Williams  v.  Fenit,  l.W.  &  W.  C.  0.,  519. 
"McGregor  v.  Taylor,  26  S.  W.,  443. 
sa  Patrick  v.  Laprelle.  40  S.  W.,  552. 
38  Messer  v.  Bosselt,  4  Willson  C.  C.,  298. 

40  2  Texas  Civ.  App.,  388. 

41  3  Texas  Civ.  App.,  465. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  Ill 

peaceable  and  undisputed  and  adverse  possession  thereof  under  superior 
title/'  etc.,  then  the  sum  so  reserved  should  be  paid.  No  suit  was 
brought  in  the  district  court  to  determine  the  question  of  title,  but  suit 
was  brought  on  the  bond  in  the  county  court.  The  Court  of  Civil  Ap- 
peals held  that  there  was  no  breach  of  the  bond  alleged,  and  that  the 
superiority  of  the  title  to  the  land  could  not  be  shown  in  the  county 
court,  although  the  defendants  were  then  in  possession  of  the  thirteen 
acres.  In  the  opinion  the  court  uses  this  language:  "But  when  the 
gist  of  a  cause  of  action,  whether  in  form  of  trespass  to  try  title  or  in 
any  other  form,  rests  upon  the  proposition  that  the  title  to  the  land  as- 
serted by  the  plaintiff  is  superior  to  that  of  the  defendant,  the  district 
court  alone  has  jurisdiction  to  adjudicate  the  matter.  Cross  v.  Peter- 
son, 1  W.  &  W.  C.  C.,  sec.  1061;  Carter  Lumber  Co.  v.  Antonio  de  Gra- 
zier, 3  Willson's  C.  C.,  sec.  177;  Scripture  v.  Kent,  1  W.  &  W.  C.  C., 
sees.  1056,  1057.  The  county  court  could  not  adjudicate  the  question 
of  title  as  involved  in  this  case.  If  a  district  court  judgment  had  been 
produced  showing  an  adjudication  of  the  title  in  favor  of  the  Heffleys, 
the  county  court  could  have  rendered  judgment  on  the  bond." 

In  Myers  v.  Jones,42  decided  October  18,  1893,  this  question  was  pre- 
sented in  a  peculiar  form.  The  action  was  one  of  trespass  to  try  title 
to  sixty-five  acres  of  land  in  Wichita  County.  The  defendants  asserted, 
among  other  things,  title  under  a  judgment  of  the  county  court  of  Milam 
County,  which  attempted  to  adjudge  to  the  defendants  certificates  upon 
which  the  land  was  located.  This  suit  in  the  county  court  was  begun 
before  the  location  of  the  certificate,  and  the  location  was  made  while 
the  suit  was  pending.  The  court  says :  "We  incline  to  the  opinion  that 
the  judgment  rendered  by  the  County  Court  of  Milam  County  after  the 
location  of  this  land,  although  the  suit  was  commenced  before  such  lo- 
cation, was  a  nullity  as  to  it,  and  there  was,  therefore,  no  error  as  to  its  ex- 
clusion by  the  court  below.  The  language  of  the  Constitution  is,  that 
the  county  court  shall  not  have  jurisdiction  of  any  suit  'for  the  recovery 
of  lands,  nor  of  suits  for  the  enforcement  of  liens  upon  land/  and  we 
think  that  after  the  location  of  the  certificate,  that  suit  became,  in 
effect,  a  suit  for  the  recovery  of  land,  of  which  the  county  court  no 
longer  had  jurisdiction.  This  of  course,  does  not  apply  to  that  part  of 
the  certificate  unlocated  at  the  time  of  the  rendition  of  the  judgment." 

Victoria  v.  Schott,43  decided  January  31,  1895,  was  a  suit  brought  in 
the  county  court  by  Mrs.  Schott  against  the  city  of  Victoria  for  value  of 
certain  gravel  removed  from  land  claimed  by  her  and  for  damages  to 
the  land.  The  city  plead  to  the  jurisdiction,  on  the  point  that  Mrs. 
Schott's  right  to  recover  could  only  be  established  by  proving  her  title  to 
the  land.  This  point  was  overruled  by  the  court.  The  city  then  plead 

42  4  Texas  Civ.  App.,  330. 
Texas  Civ.  App.,   332. 


112  CIVIL    JURISDICTION    OF   DISTRICT   AND    COUNTY    COURTS. 

title  in  itself  to  the  land  and  consequently  no  liability  to  Mrs.  Schott. 
This  plea  the  court  struck  out.  Judgment  was  rendered  for  Mrs. 
Schott,  and  the  city  appealed.  Judge  Williams,  in  delivering  the  opin- 
ion of  the  Court  of  Civil  Appeals,  says:  "The  case  made  by  the  peti- 
tion was  one  of  which  the  county  court  had  jurisdiction.  The  suit  was 
for  a  sum  of  money  within  the  jurisdiction  of  the  court,  and  the  fact 
that  the  liability  arose  from  trespass  upon  plaintiff's  land  did  not  af- 
fect the  power  of  the  court  to  adjudicate  upon  it.  The  suit  was 
not  one  'for  the  trial  of  title  to  land/  nor  'for  the  recovery  of  land/ 
The  two  expressions  used  in  the  Constitution  in  defining  the  jurisdiction 
of  the  district  and  county  courts  are  evidently  intended  to  convey  the 
same  meaning,  and  have  reference  to  cases  where  the  title  to  land  is  to 
be  determined  or  its  recovery  had  by  the  judgment  sought. 

"In  actions  for  a  debt  or  damages  in  amounts  within  the  jurisdiction 
of  the  county  courts,  the  right  of  recovery  may  depend  upon  the  title  to 
land.     The  court  having  the  power,  expressly  given,  to  determine  such 
right  to  recover,  must  decide  all  questions  of  law  and  fact  upon  which  its 
determination  depends.     Thus  the  question  of  title  comes  incidentally 
into  the  case,  and  must  be  decided  before  the  court  can  render  judgment 
settling  the  claims  in  dispute.     But  in  doing  so  it  does  not  adjudicate 
or  settle  the  title  to  the  land  nor  the  right  to  recover  it,  but  simply  de- 
termines that  the  plaintiff  is  or  is  not  entitled  to  recover  the  thing  sued 
for,  within  the  jurisdiction. 

"In  the  present  case,  if  plaintiff  owned  the  land,  she  had  the  right 
to  recover  for  the  trespass  upon  it.  On  the  other  hand,  if  defendant 
owned  the  land,  or  if  plaintiff  did  not  own  it,  defendant  was  not  liable 
to  plaintiff  for  taking  gravel.  Of  course  either  party  may  have  rights 
in  the  land,  growing  out  of  the  right  to  possession  and  not  depending 
on  the  question  of  title,  but  they  are  not  involved  in  this  case. 

"The  sustaining  of  exceptions  to  defendant's  answer  was  therefore 
erroneous.  As  plaintiff  had  the  right  to  prove  ownership  in  order  to  re- 
cover, defendant  was  entitled  to  disprove  that  fact  or  to  show  ownership 
in  itself  in  order  to  defeat  recovery.  1  W.  &  W.  C.  C.,  sec.  579;  Id.,  sees. 
1057,  1061,  1132;  2  Wills.  C.  C.,  sees.  95,  431,  568;  3  Id.,  sees.  82,  177, 
229." 

The  case  of  Donenhauer  v.  Devine,44  decided  by  the  Supreme  Court 
in  1879,  is  a  suit  by  the  owner  of  one  lot  to  enforce  an  agreement  by  the. 
owner  of  an  adjoining  lot  not  to  leave  windows  in  a  party  wall  between 
the  lots.  No  amount  of  damage  was  fixed  in  the  pleading  and  proof, 
The  question  of  jurisdiction  was  raised,  and  the  court  says :  "In  regard 
to  the  question  of  jurisdiction  of  the  district  court,  our  opinion  is,  that 
the  nature  of  the  suit,  the  injury  complained  of,  and  the  relief  sought 
were  such  as  to  give  the  district  court  jurisdiction,  independent  of  the 

44  51  Texas,  480. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  113 

amount  of  injury  alleged.  The  title  and  possession  of  land  were  so  far 
involved  as  to  make  the  case  one  for  the  district  court." 

Jt  is  a  general  rule  that  a  suit  to  set  aside  a  judicial  sale  for  irregulari- 
ties in  the  proceedings  must  be  brought  in  the  court  from  which  the 
process  issued.45  When,  however,  the  judgment  is  rendered  in  the  jus- 
tice's court  and  process  on  which  sale  is  made  issues  therefrom,  it  is  held 
that  this  rule  does  not  apply,  but  that  the  defendant  may  raise  the  issue 
in  the  suit  by  the  purchaser  for  the  land  in  the  district  court.40 

In  these  cases  no  question  of  laches  arose,  as  there  had  been  no  delay. 

The  opinions  do  not  say  anything  as  to  the  county  court's  jurisdiction 
of  such  cases  but  the  reason  given  for  denying  it  to  the  justice's  court 
viz.,  that  "that  court  does  not  have  jurisdiction,  where  the  title  to  land 
is  in  litigation,  to  hear  and  determine  the  questions,"  apply  equally  to 
the  county  court. 

Nixon  v.  Grove47  is  a  suit  brought  in  the  district  court  in  which  the 
vendee  in  a  land  sale  desired  to  rescind  on  ground  of  fraud  in  vendor  as 
to  the  quality  of  the  land.  The  amount  of  purchase  money  which  ven- 
dee had  paid  was  $250.  He  was  in  possession  of  the  deed  from  vendor, 
but  prayed  to  have  it  canceled.  Jurisdiction  seems  to  have  been  claimed 
in  the  district  court,  because  the  rescision  and  cancellation  of  the  con- 
tract involved  title  to  the  land.  The  court  held  that  rescission  on  the 
grounds  upon  which  it  was  sought  did  not  involve  the  issue  of  title, 
and  that  the  prayer  for  cancellation  of  the  deed  was  manifestly  surplus- 
age, since  the  party  had  possession  of  the  deed  and  could  not  possibly 
have  been  injured  by  its  continued  existence,  and  jurisdiction  of  the  dis- 
trict court  was  denied. 

The  rules  established  by  these  cases  seem  to  be :  That  the  expression 
"trial  of  title  to  land,"  as  used  in  the  district  court  clause  of  the  Con- 
stitution, and  "recovery  of  land,"  as  used  in  the  county  court  clause, 
are  synonymous.  That  the  district  court  has  exclusive  jurisdiction  of  all 
suits  which  directly  involve  the  title  to  land ;  but  that,  in  cases  in  which 
the  question  of  title  is  only  incidentally  involved,  jurisdiction  depends 
upon  the  amount  in  controversy.  That  the  test  as  to  whether  the  title 
is  directly  or  indirectly  involved  is  will  the  determination  of  the  issues 
raised  affect  the  title  to  the  land?  If  so,  the  title  is  directly  involved;  if 
not,  indirectly.  In  other  words,  if  the  judgment  sought  would  be  res 
adjudicata  as  to  the  ownership  of  the  land,  the  district  court  alone  has 
jurisdiction;  but  if  the  judgment  would  not  have  that  effect,  the  case 
must  be  tried  in  the  court  having  jurisdiction  of  the  amount  involved, 

"Miller  v.  Koertge,  70  Texas,  167   (1888),  7  S.  W.,  691. 

"Weaver  v.  Nugent,  72  Texas,  277,  10  S.  W.,  458;  Smith  v.  Perkins,  81  Texas, 
152,  16  S.  W.,  805. 

47  59  Texas,  573. 
8 — Pleading 


114  CIVIL    JURISDICTION    OF    DISTRICT    AND   COUNTY    COURTS. 

even  though,  in  the  trial,  the  court  must  pass  for  the  purposes  of  that  liti- 
gation upon  the  question  of  title. 

The  form  of  the  action  is  immaterial.  It  may  be  trespass  to  try  title, 
an  action  to  remove  cloud  from  title,  or  an  action  of  any  other  character ; 
if  the  action  will  determine  and  adjudge  who  among  the  parties  to 
the  suit  owns  the  land,  so  that  such  judgment  could  afterwards  be  used 
as  evidence  of  ownership,  then  the  district  court  has  exclusive  jurisdic- 
tion. Otherwise  it  has  not. 


Suits  for  Enforcement  of  Liens  on  Land. 

The  word  land  has  the  same  meaning  here  as  in  the  preceding  clause.48 
There  was  no  express  constitutional  or  statutory  provision  equivalent  to 
this  prior  to  the  Constitution  of  1860.  It  has  been  retained  in  all  the 
Constitutions  since  that  time.  Before  that  date  the  decisions  had  de- 
clared the  jurisdiction  of  such  cases  to  be  exclusively  in  the  district 
court.49  Under  the  Constitution  of  1876,  the  Court  of  Appeals  decided 
that  the  clause  extended  to  all  liens  on  real  estate,  whether  acquired  by 
legal  process  during  the  progress  of  the  suit  in  which  the  foreclosure  was 
asked,  or  otherwise ;  and  denied  the  jurisdiction  of  the  county  and  justice 
courts  to  foreclose  attachment  liens  on  land.50 

The  Supreme  Court,  however,  came  to  a  directly  opposite  conclusion 
as  to  attachment  liens,  and  limited  the  operation  of  the  provision  to  those 
liens  which  were  existing  at  the  time  the  suit  was  instituted  and  for  the 
foreclosure  of  which  the  suit  was  brought,  whether  dependent  upon  con- 
tract, statute,  or  the  levy  of  legal  process  and  those  arising  subsequently  in 
any  way  except  by  the  levy  of  process  in  that  particular  suit  (i.  e.,  to  all 
such  liens  as,  under  the  rules  of  practice  must  be  alleged  and  proved  in 
order  to  entitle  the  lienor  to  a  judgment  of  foreclosure);  and  sustained 
the  power  of  the  county  and  justice  courts  to  foreclose  all  such  liens  as 
grew  out  of,  or  were  incidental  to,  the  suit  in  which  the  judgment  of  fore- 
closure was  entered.51 

The  difference  between  the  courts  was  irreconcilable,  and  the  Legisla- 
ture came  to  the  relief  of  the  situation  by  the  enactment  of  a  statute52 
to  the  effect  that,  when  an  attachment  was  levied  on  real  estate  in  the 
progress'  of  a  suit  in  the  county  or  justice  court,  it  should  not  be  neces- 

4ST.  &  P.  R.  R.  Co.  v.  McMullen,  1  W.  &  W.  C.  C.,  sec.  161,  et  seq. 

49  Hargrove  v.  Simpson,  25  Texas,  396. 

50  Shandy  v.  Conrales  &  Logeman,  1  W.  &  W.  C.  C.,  sec.  238 ;  Newton  v.  Heiden- 
heimer.  2  Will  son  C.  C.,  sec.  126;  Rowan  v.  Shepard,  Stevens  &  Co.,  2  Willson  C. 
C.,  sec.  297. 

51  Hildebrand  v.  McMahon,  59  Texas,  450. 

52  Acts  19th  Leg.,  p.  73;  Sayles'  Stats.,  art.  180a. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  115 

sary  for  the  judgment  entered  to  foreclose  the  lien  thereby  acquired, 
but  that  the  lien  should  be  preserved  by  a  mere  recitation  in  the  judgment 
of  the  facts  of  the  levy  and  the  existence  of  the  lien,  and  that  sale  of 
the  property  attached  made  under  such  judgment  should  pass  all  the 
title  and  interest  levied  on  under  such  attachment. 

Upon  the  organization  of  the  Courts  of  Civil  Appeals,  under  the 
amendments  of  1891,  these  courts  followed  the  rule  as  announced  by  the 
Supreme  Court  in  the  case  of  Hildebrand  v.  McMahon,  and  this  is  now 
the  settled  law  upon  the  subject.53 

As  in  these  cases,  when  the  amount  in  controversy  is  five  hundred 
dollars  or  less,  the  jurisdiction  of  the  district  court  depends  upon  the 
existence  of  the  lien,  if  the  plaintiff  fails  to  prove  the  lien  the  court  can 
not  enter  judgment  for  the  debt.54  This  seems  to  be  contrary  to  the 
general  rule  for  determining  jurisdiction  by  facts  properly  pleaded  by 
plaintiff  in  good  faith,  but  the  decisions  are  unmistakable. 


"Of  all  Suits  for  Trial  of  Bight  of  Property  Levied  on  in  Virtue 
of  any  Writ  of  Execution,  Sequestration,  or  Attachment, 
"When  the  Property  Levied  on  Shall  be  Equal  to  or  Exceed 
in  Value  $5OO." 

The  trial  of  right  of  property  is  a  statutory  action  provided  for  per- 
sons who  assert  rights  of  possession  in  personal  property  which  has  been 
levied  on  under  a  writ  to  which  they  are  not  parties.  It  affords  a  sum- 
mary method  for  determining  the  possessory  rights  of  the  claimant  in 
the  property,  and  frequently  practically  settles  the  question  of  title. 
To  entitle  one  to  this  action  he  must  present  to  the  officer  making  the 
levy  a  written  statement  of  his  claim  verified  by  affidavit,  and  a  bond; 
and  when  these  papers  are  properly  prepared  and  presented,  the  offi- 
cer indorses  on  them  the  value  of  the  property  as  estimated  by  him,  and 
surrenders  the  property  to  the  claimant,  and  returns  the  writ,  claim,  and 
bond  with  his  indorsement  to  the  court  of  the  county  from  which  the 
writ  issued  having  jurisdiction  to  try  the  claim  thus  made. 

This  clause  of  the  Constitution  applies  only  to  the  trial  of  these  stat- 
utory actions,55  and  to  those  only  when  the  levy  is  made  under  one  of  the 
three  writs  named  in  it.56  When  the  levy  is  under  either  of  those  writs 
(attachment,  sequestration,  or  execution),  and  the  amount  is  just  $500, 
or  over  that,  jurisdiction  to  hear  this  statutory  action  is  exclusively  in 

53  Grizzard  v.  Brown,  2  Texas  Civ.  App..  584,  22  S.  W.,  252. 

MSnyder  v.  Wiley  &  Porter,  59  Texas,  448;  Cameron  &  Co.  v.  Marshall,  65 
Texas,"?;  Carter  v.  Hubbard,  79  Texas,  356,  15  S.  W.,  392. 

=5  Morrow  v.  Short,  3  Will  son  C.  C.,  54. 

68  St.  Louis  Type  Foundry  v.  Taylor,  6  Texas  Civ.  App.,  732,  26  S.  W.,  226. 


116  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 

the  district  court.57  When  the  sheriff  has  indorsed  the  estimated  value 
of  the  property  on  the  bond,  this  value  is  conclusive  on  question  of  juris- 
diction.08 When  the  officer  fails  to  make  such  indorsement,  the  juris- 
diction is  determined  by  the  value  stated  in  the  affidavit  and  bond.59 

The  Constitution  and  statutes  as  construed  fix  the  jurisdiction  of  the 
several  courts  in  these  statutory  actions  as  follows :  The  jurisdiction 
of  the  justice  court  is  exclusive,  when  the  value  of  the  property  levied 
on  is  two  hundred  dollars  or  less;  the  jurisdiction  of  the  county  court 
is  exclusive,  when  the  value  of  the  property  is  over  two  hundred  dollars 
and  less  than  five  hundred  dollars,  without  reference  to  the  writ  under 
which  the  seizure  is  made,  or  where  the  value  is  just  five  hundred  dollars 
and  the  seizure  is  not  under  any  of  the  writs  mentioned  in  the  Consti- 
tution— attachment,  sequestration,  or  execution;  the  jurisdiction  of  the 
district  court  is  exclusive,  where  the  value  is  over  one  thousand  dollars 
without  reference  to  the  writ  under  which  the  levy  is  made,  or  where 
the  value  is  just  five  hundred  dollars  or  over  when  the  levy  is  made  under 
any  of  the  writs  mentioned  in  the  Constitution.  The  jurisdiction  of 
the  district  and  county  courts  is  concurrent  -when  the  levy  is  made  under 
some  writ  not  mentioned  in  the  Constitution  and  the  amount  is  over 
five  hundred  and  not  more  than  one  thousand  dollars. 


"Of  all  Suits,  Complaints,  or  Pleas  Whatever  Without  Regard 
to  any  Distinction  Between  Law  and  Equity,  When  the 
Matter  in  Controversy  Shall  be  Valued  at  or  Amount  to 
$500,  Exclusive  of  the  Interest." 

Of  all  Suits,  Complaints,  or  Pleas  Whatever. 

These  words  have  been  in  every  Constitution  of  the  State  of  Texas, 
and  have  been  construed  in  numerous  cases  prior  to  1891.  In  one  of  the 
most  important  of  these,60  decided  under  the  Constitution  of  1876, 
Chief  Justice  Eoberts  says: 

"A  case  is  defined  to  be  a  question  contested  before  a  court  of  justice; 
an  action  or  suit  in  law  or  equity.  Martin  v.  Munter's  Lessee,  1  Wheat., 
352;  Osborn  v.  U.  S.  Bank,  9  Id.,  819;  9  Pet.,  224. 

"A  suit  is  defined  to  be  the  prosecution  of  some  demand  in  a  court 
of  justice.  Cohen  v.  Virginia,  G  Wheat.,  407;  Wayman  v.  Southard,  10 
Id.,  30. 

57  Erwin  v.  Blanks,  60  Texas,  583 ;  Cleveland  v.  Tufts,  69  Texas,  580,  7  S.  W., 
72;  Carney  v.  Marsalis,  77  Texas,  63,  13  S.  W.,  636;  Betterton  v.  Echols,  85  Texas, 
212,  20  S.  W.,  63;  Wetzel  v.  Simon,  87  Texas,  403,  28  S.  W.,  942. 

58  Cleveland  v.  Tufts,  and  Carney  v.  Marsalis,  supra. 

59  Lemon  v.  Borden,  83  Texas,  620,  19  S.  W.,  160. 

60  Ex  Parte  Towles,  48  Texas,  413. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  117 

"The  district  court  is,  therefore,  a  tribunal  for  the  trial  of  suits  or 
cases  in  which  there  are  usually  contesting  parties;  some  valuable  right 
recovered  or  adjudged;  a  judgment  of  record,  and  execution  to  enforce 
it.  Such  is  the  general  character  stamped  upon  it  by  the  Constitution. 

"There  are  cases  that  may  be  brought  in  the  district  court  wanting  in' 
some  of  these  elements  of  the  jurisdiction.  For  instance,  an  escheat 
may  be  in  a  suit  by  the  State  for  property,  without  an  opposing  party. 
Proceedings  in  rem  might  also  come  within  its  jurisdiction  under  laws 
authorizing  them,  without  any  opposing  party  being  cited,  either  prop- 
erty or  a  recognized  legal  status  being  the  object  of  the  suit.  1  Greenl., 
sec.  525.  Habeas  corpus  is  an  ex  parte  proceeding  but  is  always  founded 
on  some  deprivation  of  legal  right. 

"In  some  of  the  grounds  of  jurisdiction,  any  particular  amount  in  the 
value  of  the  subject  matter  is  not  required;  as  suits  for  trial  of  the 
title  to  land.  And  there  may  be  others  not  enumerated, — for  instance, 
suits,  or  motions,  or  other  proceedings  in  the  nature  of  suits,  growing 
out  of,  and  incidental  to  judgments  already  rendered  in  the  district  court. 
It  may  also  be  a  subject  matter  of  such  nature  as  that  a  suit  can  be  en- 
tertained in  the  district  court,  irrespective  of  the  amount  involved,  as  in 
case  of  divorce,  to  establish  the  legal  status  of  the  party;  in  which 
also  there  will  be  no  need  of  an  execution  to  enforce  the  judgment." 

This  case  and  others  to  the  same  effect61  establish  the  proposition 
that  suits,  complaints,  or  pleas,  under  our  former  Constitution,  did  not 
include  abstract  or  speculative  questions,  or  questions  of  any  kind  ex- 
cept those  involving  controverted  legal  rights  between  parties,  usually 
of  ascertain  able  money  value,  but  occasionally  lacking  this  last  element, 
which  controversies  were  capable  of  being  heard  and  decided  as  be- 
tween the  parties  litigant,  in  such  way  that  the  determination  could 
be  enforced  by  some  order  or  process  from  the  court.  The  retention 
of  the  language  in  the  present  Constitution  after  those  decisions,  under 
well  established  rules  of  construction,  is  an  adoption  of  the  interpre- 
tation given  in  them,  so  that  no  claim  for  enlarged  powers  in  our 
present  courts  can  be  legitimately  sustained  by  giving  to  this  clause  any 
different  meaning.  Recognizing  this,  the  framers  of  the  Constitutional 
amendments  have  sought  to  obviate  the  practical  difficulties  under  the 
old  Constitutions  by  adding  other  clauses,  which  will  be  subsequently 
considered. 

Without  Regard  to  any  Distinction  Between  Law  and  Equity. 

Under  the  common  law  of  England,  as  that  term  is  used  in  America, 
are  embraced  two  distinct  systems  of  remedial  law, — one  administered  in 

61  Williamson  v.  Lane,  52  Texas,  336;  Ex  Parte  Whitlow,  59  Texas.  273;  Gib- 
son v.  Templeton,  62  Texas,  556. 


118  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

courts  of  law,  the  other  in  courts  of  equity.  The  organization,  jurisdic- 
tion, and  methods  of  procedure  of  these  courts  are  radically  different. 
Although  in  some  instances  the  same  person  presides  in  both 
courts,  he  is  in  legal  contemplation  a  different  officer  when  he 
hears  cases  as  a  judge  on  the  law  side  of  the  court,  having  functions,  ex- 
ercising powers  and  discharging  duties  essentially  different  from  those 
pertaining  to  him  when  he  sits  as  chancellor  on  the  equity  side.  In  a 
common  law  court,  only  legal  rights  can  be  recognized,  and  common  law 
penalties  or  sanctions  applied.  In  a  court  of  equity  equitable  rights 
are  cognizable  and  equitable  remedies  administered.  If  a  party  has  a 
legal  right  against  another,  he  can  bring  suit  in  the  common  law  court, 
and  the  defendant,  though  he  may  have  an  absolute  defense,  in  equity, 
is  helpless  in  the  common  law  tribunal.  His  defense  could  be  neither 
heard  nor  determined  there.  His  only  remedy  is  to  resort  to  a  court  of 
equity,  institute  suit  on  his  equitable  right,  obtain  an  injunction  from 
the  chancellor  preventing  the  plaintiff  in  the  common  law  from  proceed- 
ing with  the  common  law  action  until  the  suit  in  equity  could  be  heard, 
take  his  decree  in  equity  establishing  the  superiority  of  his  equitable 
right,  and  obtain  a  perpetual  injunction  against  the  plaintiff  forbidding 
him  from  proceeding  further  in  the  common  law  court.  In  common 
law  cases  a  jury  is  always  allowed  on  the  facts  and  witnesses  examined 
in  open  court;  in  equity,  no  jury  can  be  had — all  matters  both  of  law 
and  of  fact  being  decided  by  the  chancellor,  and  no  oral  examination 
of  witnesses  is  allowed  before  the  court,  but  all  testimony  is  introduced 
by  deposition  previously  taken.  Different  systems  of  pleading  obtain 
in  the  two  tribunals  which  not  only  fail  to  correspond,  but  are  actually 
conflicting  in  their  fundamental  ideas  and  development. 

None  of  these  distinctions  have  ever  obtained  in  Texas.  The  civil  law 
knew  nothing  of  them.  The  Constitution  and  statutes  of  Coahuila  and 
Texas  and  of  the  Eepublic  ignored  them.  The  Constitution  of  1845  and 
each  Constitution  since  has  mentioned  them  only  to  deny  their  existence. 
As  early  as  184S02  the  Supreme  Court  used  this  language:  "This  inquiry 
is  only  material  here  in  so  far  as  it  conduces  to  show  whether  the 
present  defense  could  be  set  up  either  at  law  or  in  equity;  for  if  ad- 
missible in  either  jurisdiction,  it  must  be  available  here.  Having  no 
separate  court  in  which  equitable  rights  are  exclusively  cognizable  and 
having  jurisdiction  of  rights  as  well  equitable  as  legal,  all  the  rights 
both  equitable  and  legal  appertaining  to  parties  and  the  subject  matter 
must  be  adjudicated  here  in  every  suit  wherein  they  are  litigated  and 
drawn  in  question." 

62  Smith  v.  Doak,  3  Texas,  218. 


DISTEICT    COURT — DETAILED    CONSIDERATION.  119 

This  doctrine  is  still  more  fully  announced  in  a  latter  case,63  in  which 
the  court  says: 

"Before  the  introduction  of  the  common  law  the  distinction  between 
law  and  equity  was  altogether  unknown.  The  parties  stated  their 
causes  of  complaint  and  grounds  of  defense,  and  on  the  allegations 
and  proofs  such  relief  was  afforded  as  they  were  entitled  to  under  any 
and  all  laws  of  the  land,  without  reference  to  the  peculiarities  of  the 
English  system  of  jurisprudence  which  rendered  the  rights  of  parties, 
or  at  least  their  relief,  dependent  not  only  upon  the  facts  of  their  case, 
but  also  upon  the  forum  in  which  redress  was  sought.  Upon  the  intro- 
duction of  the  common  law  the  intention  of  the  Legislature  is  manifest 
to  prevent  such  distinction  from  being  recognized;  at  least  to  an  ex- 
tent which  deprives  parties  of  any  relief  to  which  they  may  be  entitled 
under  the  rules  and  principles  of  either  law  or  equity.  By  the  Constitu- 
tion of  the  State  and  subsequent  legislation  the  distinction  between 
these  two  systems  is  in  great  measure,  if  not  totally,  disregarded.  The 
district  courts  have  jurisdiction  of  all  suits,  complaints  and  pleas 
whatever,  without  regard  to  any  distinction  between  law  and  equity. 
Jury  trials  are  to  be  allowed  on  application  of  the  parties  in  equity  cases. 
Art.  4,  Const.  All  civil  suits  are  to  be  commenced  by  petition,  which 
must  contain  a  clear  statement  of  the  cause  of  action  and  the 
relief  sought  (Acts  of  1846,  p.  365);  and  the  district  judges  are  author- 
ized, on  an  appropriate  prayer  for  relief,  to  grant  all  such  orders  or 
writs  or  other  process  as  may  be  necessary  to  obtain  relief ;  and  may  also 
frame  the  judgment  of  the  court  as  to  afford  all  the  relief  which  may  be 
required  by  the  nature  of  the  case,  and  which  is  granted  by  courts  of  law 
or  equity.  Acts  of  1846,  p.  202.  The  only  inquiry  then  to  be  made  at 
the  institution  of  a  suit  is  whether  the  facts  of  the  case  are  such  as  to  en- 
title a  party  to  a  judgment  in  his  favor  in  either  law  or  equity;  and  if 
he  have  rights  cognizable  by  either,  such  relief  will  be  adjudged  by 
the  court  as  the  nature  of  the  case  demands.  The  rule  that  courts  of 
equity  will  interfere  only  where  the  party  is  remediless  at  law  has  but 
little  application  under  a  system  in  which  the  litigants  in  a  suit  can  de- 
mand and  obtain  all  the  relief  which  can  be  granted  by  either  courts  of 
law  or  equity." 

Still  later,  a  plaintiff  sought  specific  performance  of  a  contract,  and  in 
same  petition  prayed  for  damages  for  its  breach  if  its  performance  could 
not  be  enforced.  Objection  was  made  that  one  was  an  equitable,  and 
the  other  a  legal  remedy,  and  that  therefore  the  alternate  prayers  could 
not  be  entertained.  The  decision  was :  "The  general  rule  is  that  dam- 
ages must  be  sought  at  law  and  specific  performance  in  equity,  but 
this  has  no  proper  application  where  the  jurisdictions  are  blended  and 

83  Smith  v.  Clopton,  4  Texas,   109,  decided  in  1849. 


120  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

where  therefore  both  objects  may  be  embraced  in  the  same  suit,  and 
where  consequently  a  prayer  may  be  in  the  alternative,  and  where 
if  one  relief  fails  the  other  may  be  awarded,  if  on  principles  of  law  or 
equity  either  the  one  or  the  other  can  be  granted."64 

Where  the  Matter  in  Controversy  Shall  Be  Valued  at  or  Amount  to 
Five  Hundred,  Dollars  Exclusive  of  Interest. 

With  this  clause  we  pass  from  jurisdictional  tests  based  upon  the 
nature  of  litigation  or  the  subject  matter,  and  come  to  one  resting 
entirely  upon  the  amount  in  controversy  in  the  case. 

To  determine  the  effect  of  this  clause,  we  must  consider  it  in  connec- 
tion with  the  corresponding  clause  with  reference  to  the  county  court, 
which  is  in  these  words : 

"The  county  court  shall  have  exclusive  jurisdiction  in  all  civil  cases 
when  the  matter  in  controversy  shall  exceed  two  hundred  dollars  and  not 
exceed  five  hundred  dollars  exclusive  of  interest,  and  concurrent  juris- 
diction with  the  district  court  when  the  matter  in  controversy  shall  ex- 
ceed five  hundred  dollars  and  not  exceed  one  thousand  dollars,  exclusive 
of  interest." 

It  is  apparent  that  there  is  a  conflict  between  these  two  clauses  when 
the  amount  is  just  five  hundred  dollars.  It  is  held  that  the  clause 
fixing  the  jurisdiction  of  the  county  court  is  the  more  specific  expres- 
sion of  the  will  of  the  people,  and  that,  therefore,  when  jurisdiction  is 
dependent  wholly  upon  the  amount  in  controversy  and  the  suit  is  for 
exactly  five  hundred  dollars,  exclusive  of  interest  and  costs,  the  juris- 
diction of  the  county  court  is  exclusive.05  If  the  suit  is  for  over  five  hun- 
dred dollars  and  not  more  than  one  thousand  dollars,  the  jurisdiction 
of  the  two  courts,  district  and  county,  is  concurrent.  If  the  suit  is  for 
more  than  one  thousand  dollars,  the  jurisdiction  of  the  district  court 
is  exclusive. 

Amount  in  Controversy.  » 

It  is  important  to  ascertain  what  is,  in  contemplation  of  law,  the 
amount  in  controversy.  Ordinarily. in  suits  for  money  demands  it  is  .the 
amount  exclusive  of  interest  and  cost  claimed  by  appropriate  allegations 
in  the  plaintiff' s  petition,  as  due  him  from  the  defendant.  In  suits  for 
property,  it  is  the  value  of  the  property  as  alleged  by  the  plaintiff. 
Where  the  amount  thus  stated  is  sufficient  to  give  jurisdiction,  this 

64  Mitchell  v.  Sheppard,  13  Texas,  490  (1855);  Douglas,  Brown  &  Co.  v.  Neil 
&  Co.,  37  Texas,  547 ;  Gibson  v.  Moore,  26  Texas,  615 ;  Rogers  v.  Kennard,  54 
Texas,  39. 

os  Railway  Co.  v.  Rainbolt,  67  Texas,  654,  4  S.  W.,  356   (1881). 


DISTRICT    COURT — DETAILED    CONSIDERATION.  121 

jurisdiction  is  not  lost  by  the  defendant's  pleading  payment  or  credits, 
or  other  offsets;  nor  will  the  jurisdiction  be  lost  because  the  defendant 
shall  establish  the  truth  of  his  contention  and  thus  reduce  the  amount 
of  recovery  below  the  jurisdictional  amount,  or  defeat  the  plaintiff's 
claim  entirely.  The  controversy  is  over  the  matters  properly  pleaded. 
The  verdict  and  judgment  reached  are  the  results  of  the  controversy. 
To  hold  differently  would,  in  many  cases,  be  a  practical  denial  of  all 
remedy.  The  court  could  never  render  a  judgment  for  a  defendant 
who  had  won  a  cause,  nor  for  a  plaintiff  who  had  secured  a  verdict  for 
less  than  the  minimum  jurisdictional  amount  of  the  court  in  which  the 
case  was  tried,  and  no  end  could  be  arrived  at  in  such  litigation. 

This  principle  was  recognized  early  in  our  history,  and  the  first  civil 
suit  decided  by  the  Supreme  Court  of  the  Eepublic60  states  the  rule 
very  tersely  in  these  words,  "the  amount  of  the  controversy  is  the 
amount  claimed  in  the  plaintiff's  petition."  In  the  case  of  Tarbox  & 
Brown  v.  Kennon,67  the  Supreme  Court  says :  "In  questions  of  jurisdic- 
tion thus  defined  and  limited  by  positive  law,  it  has  often  been  ruled  that 
the  plaintiff's  demand  as  set  forth  in  his  declaration  or  petition  is  to  be 
considered  the  matter  in  controversy,  and  recourse  must  be  had  to  the 
demand  thus  set  out  to  determine  the  jurisdiction.  In  such  case,  the 
verdict,  it  is  held,  is  not  the  rule  to  determine  the  amount  in  controversy, 
but  when  the  plaintiff  declares  for  a  sum  within  the  jurisdiction  con- 
ferred and  there  is  no  plea  to  the  jurisdiction,  the  court  may  adjudicate 
the  subject  matter,  and  give  judgment  for  a  less  sum  than  that  which 
is  required  to  give  jurisdiction." 

The  Congress  of  the  Eepublic,  by  act  approved  February  5,  1840, 
embodied  this  doctrine  in  a  statutory  enactment.68  It  has  ever  since 
been  recognized  and  enforced. 

Interest. 

The  amount  in  controversy  must  be  exclusive  of  interest  and  cost. 

It  becomes  important,  in  view  of  some  recent  decisions  of  our  Supreme 
Court,  to  ascertain  clearly  what  interest  is.  The  statute69  defines  it  as 
follows:  "Interest  is  the  compensation  allowed  by  law  or  fixed  by  the 
parties  to  a  contract  for  the  use  of,  f orebearance,  or  detention  of  money." 

Interest  is  allowed  by  statute  as  follows  :70  "On  all  written  contracts 
ascertaining  the  sum  payable  when  no  specified  rate  of  interest  is  agreed 

88  Hunter  v.  Oelrich,  Dall.,  358   (January,  1840). 
o:3  Texas,  8   (decided  December,  1848). 

68  Laws   Fourth   Congress,   p.   63;    Baker  v.   Wafford,   4   Texas,    120;    Watts  v. 
Hardy,  5  Texas,  387;  Bonner  v.  Watson,  6  Texas,  173. 

69  Rev.  Stats.  1895,  art.  3097. 
70Rav.  Stats.  1895,  art.  3101. 


122  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

upon  by  the  parties  to  the  contract,  interest  shall  be  allowed  at  the 
rate  of  six  per  cent  per  annum  from  and  after  the  time  when  the  sum 
is  due  and  payable;"  and  T1  "On  all  open  accounts,  when  no  specified 
rate  of  interest  is  agreed  upon  by  the  parties,  interest  shall  be  allowed  at 
the  rate  of  six  per  cent  per  annum  from  the  first  day  of  January  after 
the  same  are  made."  Our  Supreme  Court  has  held  that  in  the  absence 
of  agreement,  interest  is  strictly  statutory,  and  that  no  compensation 
allowed  by  law,  or  permitted  by  it  to  be  allowed  by  the  jury  in  any  case 
for  detention  of  money  in  the  absence  of  agreement  between  the  parties, 
is  "interest,"  unless  it  comes  under  one  or  the  other  of  these  statutes. 

The  law  of  course  permits  parties  to  agree  for  payment  of  "interest" 
so  long  as  the  contract  is  not  usurious. 

For  purposes  of  jurisdiction  it  is  therefore  essential  to  distinguish  be- 
tween "compensation"  for  the  detention  of  money  provided  for  by  the 
two  clauses  of  the  statute  above  quoted  or  by  lawful  agreement  be- 
tween the  parties,  on  the  one  hand,  and  "compensation"  for  such  de- 
tention permitted  by  law  by  way  of  damages  for  the  loss  of  the  use  of 
the  money  in  cases  which  do  not  come  under  either  of  the  former 
heads,  even  though  such  damages  are  to  be  measured  by  the  rate  of  "in- 
terest" fixed  by  the  statute,  on  the  other. 

The  first  is  "interest,"  and  is  excluded  in  ascertaining  the  amount  in 
controversy;  the  second  is  not  interest  and  is  included.72 

The  preceding  paragraphs  give  the  result  of  the  decisions  cited.  It 
is  certainly  unfortunate  that  questions  of  jurisdiction  should  be  em- 
barrassed with  technical  niceties. 

The  statutes  quoted  by  the  court  as  a  definition  of  interest  appear 
in  our  law  for  the  first  time  in  the  Eevised  Statutes  of  1879,  three  years 
after  the  adoption  of  the  Constitution  of  1876,  and  thirty  years  after  the 
Constitution  of  1845,  in  which  the  term  "interest"  occurs  in  connec- 
tion with  the  jurisdiction  of  the  district  and  justices'  courts.  Further, 
the  Supreme  Court  of  the  United  States  in  a  number  of  cases  has  defined 
the  term  so  as  to  include  compensation  for  the  detention  of  money 
whether  fixed  by  contract,  allowed  by  statute,  or  permitted  under  the 
principles  of  common  law  by  way  of  damages.73 

It  seems  some  adjustment  might  be  made  which  would  relieve  this 
opportunity  for  mistake,  without  doing  violence  to  legal  rules  of  con- 
struction. Attorneys'  fees  provided  for  in  a  contract  are  not  interest  or 
costs,  and  must  be  taken  into  account  in  estimating  the  amount  in 

71  Rev.  Stats.  1895,.  art.  3102. 

72  Heidenheimer  v.  Ellis,  67  Texas,  426,  38  S.  W.,  666;   Baker  v.   Smelser,  88 
Texas,  26,  29  S.  W.,  377;  Schultz  v.  Tessraan,  49  S.  W-,  1031. 

73  Brown  v.   Hiatt.    15    Wall.,    185;    Insurance  Co.   v.   Piaggio,    16   Wall.,   386; 
Aurora  City  v.  West,  7  Wall.,  105;   Redfield  v.  Ystalyfera  Iron  Co.,  110  U.  S., 
176;  Anderson's  Law  Diet.,  title  "Interest,"  p.  563. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  123 

controversy,  unless  they  be  remitted  entirely,  which  the  Court  of  Civil 
Appeals  at  Galveston  has  held  may  be  done.74 

In  Dwyer  v.  Bassett,75  a  suit  brought  in  the  district  court  for  five  hun- 
dred dollars  actual  and  five  hundred  exemplary  damages,  the  defendant 
died  pending  the  suit  and  the  claim  for  exemplary  damages  lapsed.  The 
court  retained  jurisdiction  for  the  five  hundred  dollars  actual  damages 
and  damages  claimed  by  way  of  interest  and  tried  the  case.  The  judg- 
ment was  affirmed  by  the  Court  of  Civil  Appeals. 

Joinder  in  Causes  of  Action  to  Make  Jurisdictional  Amount. 

Other  interesting  questions  arise  in  cases  in  which  a  number  of  claims 
are  joined  and  made  the  basis  of  a  suit,  no  one  of  them  alone  being  suffi- 
cient to  give  jurisdiction.  The  decisions  agree  that  when  all  the  claims 
are  due  and  unpaid  and  suable  in  the  county  in  which  the  suit  is  brought, 
the  jurisdiction  attaches  and  is  unaffected  by  the  fact  that  no  one  of 
the  claims  is  alone  sufficient  in  amount.  The  question  was  first  con- 
sidered and  the  contrast  in  this  regard  between  the  Texas  and  the  com- 
mon law  systems  made  in  Myers  v.  Lewis.76  The  opinion  is  as  follows: 

"The  next  error  assigned  is  that  the  court  has  no  jurisdiction  in  the 
case.  The  assignment  is  founded  on  the  fact  that  one  of  the  notes  set 
out  in  the  plaintiff's  petition  is  for  a  sum  under  the  jurisdiction  of  the 
district  court,  and  cognizable  before  a  justice  of  the  peace.  It  is  a  rule 
applicable  to  a  declaration,  according  to  the  English  practice,  that 
where  different  notes  or  ackonwledgements  are  sued  on,  each  one  must 
be  separately  counted,  and  that  each  count  must  show  of  itself  a  suffi- 
cient cause  of  action;  but  even  a  strict  compliance  with  that  system 
could  not  oust  the  jurisdiction  in  this  case,  because  two  of  the  counts 
would  be  good,  as  two  of  the  notes  are  for  an  amount  sufficient  to  give 
jurisdiction,  and  the  objection  would  be  confined  to  one  count  only;  and 
if  that  was  bad,  it  would  not  vitiate  the  two  good  counts.  This  would 
have  been  the  result  of  a  strict  application  of  the  rules  of  practice  to 
a  common  law  declaration;  but  it  is  believed  that  a  less  stringent  rule 
would  now  prevail  even  under  that  system.  If  the  larger  note  would 
give  the  court  jurisdiction,  it  would  then  attach  to  the  smaller  one.  It 
is  needless,  however,  further  to  discuss  the  effect  of  the  common  law 
rules  of  practice;  we  have  a  different  system.  Counts  in  pleading,  tech- 
nically speaking,  are  entirely  unknown  to  our  practice.  The  plaintiff 
sets  out  in  his  petition  his  grounds  of  action,  distinctly  alleging  the 
facts  on  which  his  right  to  recover  is  based.  If  founded  on  contracts  or 

74  Burke  v.  Adams,  3  Texas  Civ.  App.,  496. 

"29  S.  W.,  815. 

76  4  Texas,  38  (decided  in  1849). 


124  CIVIL   JURISDICTION    OF   DISTRICT   AND    COUNTY    COURTS. 

promises  in  writing,  he  is  required  so  to  describe  them  as  to  advise  the 
defendant  of  the  grounds  on  which  he  relies.  But  I  apprehend  that  the 
amount  of  the  defendant's  indebtedness  to  him  at  the  time  suit  is 
brought  must  form  the  criterion  for  determining  the  jurisdiction  of  the 
court;  and  if  the  aggregate  of  the  indebtedness,  being  by  distinct  prom- 
ises of  different  amounts,  within  the  jurisdiction  of  the  court,  it  is  suffi- 
cient. I  am  fully  aware  that,  in  those  courts  governed  by  common  law 
rules  of  practice,  it  has  been  held  otherwise;  and  that  a  party  will  not 
be  permitted  to  unite  two  distinct  promissory  notes,  neither  of  them 
alone  of  sufficient  amount  to  give  jurisdiction  to  the  court.  I  appre- 
hend, however,  that  this  arises  from  the  form  of  their  declaration,  and 
that  each  separate  count  must  show  a  right  of  action.  I  can  see  no 
reason  why,  under  our  practice,  it  should  not  be  allowed.  These  dif- 
ferent notes  would  be  only  evidence  showing  the  amount  of  indebted- 
ness; and  the  costs  and  inconvenience  to  parties  would  in  all  probability 
be  not  so  great  attending  one  suit  in  a  higher  tribunal  as  they  would  be 
if  several  suits  were  brought,  one  on  each  promise,  in  an  inferior  jurisdic- 
tion." 

The  authority  of  this  and  similar  cases  has  never  been  questioned. 

In  Middlebrook  v.  Brown,  Bradley  &  Co.,  the  company  brought  suit 
in  the  district  court  against  Middlebrook  et  al.  on  three  notes,  one 
originally  for  over  five  hundred  dollars,  but  upon  which  there  was  a 
credit  reducing  it  to  three  hundred  and  forty  dollars.  Each  of  the 
other  notes  was  for  a  less  sum.  The  larger  and  one  of  the  smaller  notes 
were  payable  in  the  county  in  which  the  suit  was  brought,  the  other  was 
not.  The  defendants  lived  in  another  county.  They  plead  their  privi- 
lege to  be  sued  on  the  last  mentioned  note  in  the  county  of  their  resi- 
dence, and  to  the  jurisdiction  of  the  court  as  to  the  other  two  notes,  since 
they  did  not  aggregate  five  hundred  dollars  after  deducting  the  credit. 
The  district  court  sustained  the  plea  of  privilege  as  to  the  note  not  made 
payable  in  the  county  and  overruled  the  plea  to  the  jurisdiction  with 
reference  to  the  remaining  notes,  and  gave  judgment  against  the  de- 
fendants for  the  amounts  due  on  them.  On  appeal,  the  Court  of  Civil 
Appeals  held  that  the  court  was  right  in  sustaining  the  plea  of  privilige, 
but  that  striking  out  the  note  not  payable  in  that  county  de- 
stroyed the  jurisdiction  of  the  court  as  to  the  others,  reversed  the 
judgment  and  entered  an  order  dismissing  the  case.  On  writ  of  error, 
the  Supreme  Court  held  that  the  Court  of  Civil  Appeals  erred  in  both 
particulars,  saying:  "We  are  of  opinion  that  the  district  court  did  not 
err  in  refusing  to  dismiss  the  cause  on  the  plea  to  the  jurisdiction,  but 
that  it  did  err  in  sustaining  defendants'  plea  of  privilege  to  be  sued  in 
the  county  of  their  residence  on  the  note  for  one  hundred  and  sixty 
dollars.  The  two  notes  being  payable  in  the  county  where  the  action  was 
brought,  suit  was  properly  brought  there,  and  in  order  to  avoid  multi- 


DISTRICT    COURT — DETAILED    CONSIDERATION.  125 

plicity  of  suits  it  was  proper  to  embrace  in  the  same  action  the  other 
notes.  Clegg  v.  Varnell,  18  Texas,  304;  Chevalier  v.  Kusk,  Dallam  Di- 
gest, 613."77 

It  has  been  several  times  held  that  where  a  suit  has  been  brought  on 
an  open  account  and  some  of  the  items  appear  on  the  face  of  the  plain- 
tiff's petition  to  be  barred  and  the  balance  of  the  items  are  not  sufficient 
to  give  jurisdiction,  if  the  defendant  objects  to  the  jurisdiction  by  special 
demurrer  setting  up  limitation,  the  jurisdiction  is  lost.78 

There  is  no  misunderstanding  as  to  the  doctrine  of  the  two  opinions 
just  cited.  Each  clearly  announces  the  rule  as  given  in  the  text.  It 
seems  quite  plain  that  they  are  out  of  harmony  with  the  great  weight 
of  authority  on  analogous  questions.  If  the  amount  in  controversy  be, 
as  the  authorities  teach,  the  amount  claimed  by  the  plaintiff  in  his  peti- 
tion in  good  faith,  and  in  such  form  as  to  legally  entitle  him  to  judg- 
ment by  default,  upon  the  failure  of  the  defendant  to  answer,  then 
these  decisions  are  justly  subject  to  criticism. 

Limitation  can  only  be  availed  of  under  our  statute  by  special  plea, 
either  in  the  form  of  a  special  exception  or  as  an  answer  to  the  merits 
stating  the  facts.  In  the  cases  under  consideration,  the  petitions  were 
good  and  would  have  sustained  a  judgment  by  default,  and  were  good 
even  against  a  general  demurrer.  If  the  answer  in  either  case  had  con- 
sisted of  a  general  demurrer  and  general  denial  and  the  proof  had  sus- 
tained the  plaintiff's  allegations,  he  would  have  been  entitled  to  recover  the 
full  amount.  So  we  have  in  each  case  pleadings  legally  tendering  issues 
for  an  amount  within  the  jurisdiction  of  the  court,  and  in  each  it  not 
only  might,  but  was  required  to,  render  judgment  for  plaintiff  in  the  ab- 
sence of  special  plea  of  limitation;  yet,  when  the  defendant  controverts 
a  portion  of  these  causes  of  action  by  such  a  special  plea,  he  eliminates 
from  the  amount  in  controversy  all  of  the  items  as  to  which  this  special 
plea  is  good,  and  thereby  ousts  the  jurisdiction  of  the  court.  This 
seems  to  be  a  point  upon  which  precedent  and  principle  do  not  agree. 

The  latest  decision  on  this  subject  is  from  the  Court  of  Civil  Appeals 
of  the  Fifth  District,71'  and  announces  just  the  opposite  dectrine  from 
that  stated  in  the  two  opinions  just  discussed.  There  is  no  reference  to 
either  of  these  cases  either  in  the  brief  of  counsel  or  in  the  opinion  of 
the  court.  A  writ  of  error  was  applied  for  to  the  Supreme  Court,  but 
was  dismissed  for  want  of  jurisdiction.  It  is  to  be  hoped  that  the  doc- 
trine of  this  later  case  from  the  Court  of  Civil  Appeals  will  prevail. 

In  Bonner  v.  Watson,80  it  was  held  that  where  suit  is  brought  on  two 

77  Middlebrook  v.  Bradley,  80  Texas,  706,  26  S.  W.,  935. 

78  Low  v.  Bawbarnd,  26  Texas,  507;  Keller  v.  Huffman,  26  S.  W.,  863. 
79Kelley  v.  Western  Union  Tel.  Co.,  43  S.  W.,  532. 

80  6  Texas,   173    (1851). 


126  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 

claims,  one  of  which  is  within  the  jurisdiction  of  the  court  and  the 
other  is  not,  if  it  is  shown  on  trial  that  the  former  was  paid  before  the 
suit,  this  defeats  the  jurisdiction.  I  have  found  no  case  expressly  over- 
ruling, criticising,  or  even  limiting  this  decision.  It  seems  to  be  con- 
trary, however,  to  the  principles  applied  in  the  numerous  authorities 
cited  hereafter,  which  require  that  issues  of  this  sort  must  be  raised  by 
plea  in  abatement  alleging  fraud.  There  is,  however,  one  subsequent 
case,81  which  cites  this  case  with  approval. 

This  question  is  presented  in  another  form  in  cases  where  the  real 
cause  of  action  is  more  than  the  jurisdictional  amount  of  the  court  in 
which  the  plaintiff  desires  to  bring  suit.  Can  the  plaintiff  in  such  a  case 
voluntarily  remit  a  portion  of  his  claim  and  thus  give  jurisdiction  ?  The 
effort  is  sometimes  made  by  entering  a  fictitious  credit  before  suit  and 
sometimes  by  entering  a  remitter  or  by  amending  the  pleadings  and  ex- 
pressly abandoning  a  part  of  the  action  after  suit  has  been  filed.  The 
question  appears  to  have  been  decided  both  ways.  The  latest  and  most 
interesting  decision  is  in  the  case  of  Burke  v.  Adoue,82  where  suit  was 
brought  in  the  county  court  on  a  note,  the  principle  of  which,  exclusive 
of  the  20  per  cent  attorneys'  fees,  as  stipulated  in  the  note,  was  less 
than  one  thousand  dollars,  but  including  the  attorneys'  fees  exceeded 
(hat  sum.  The  original  petition  was  for  the  whole  amount,  which  ex- 
ceeded the  jurisdiction.  The  point  was  raised  by  exception  and  the 
plaintiff  took  leave  to  amend,  and  in  the  amended  petition  sought  to  re- 
cover all  the  face  value  of  the  note  and  enough  attorneys'  fees  to  make 
just  one  thousand  dollars.  The  lower  court  permitted  this  to  be  done 
and  rendered  judgment  accordingly.  On  appeal,  the  case  was  reversed 
and  dismissed,  the  Court  of  Civil  Appeals  holding  that  the  claim  for 
attorneys'  fees  was  entire  and  could  not  be  divided,  and  that,  therefore, 
jurisdiction  could  not  be  given  to  the  county  court  by  abandoning  a 
portion  of  the  attorneys'  fees.  On  rehearing,  the  decision  was  modified, 
the  judgment  reversed,  and  the  cause  remanded,  with  instructions  to 
the  county  court  to  dismiss  the  suit,  'unless  the  plaintiff  remitted  all 
the  attorneys'  fees. 

Another  phase  of  this  question  is  presented  and  decided  in  Western 
Union  Telegraph  Company  v.  Durham.83  This  was  a  suit  in  a  justice's 
court  for  unliquidated  damages,  the  amount  being  stated  at  $98.50. 
Before  bringing  suit  the  plaintiff  had  presented  a  claim  for  damages  in 
the  sum  of  $112.50.  The  defendant  claimed  that  the  plaintiff  had 
fraudulently  lessened  his  claim  so  as  to  cut  off  its  appeal  from  the 
county  court  to  the  Court  of  Civil  Appeals,  and  thus  terminate  the  liti- 

81  Goodwin  v.  Dean,  49  Texas,  248. 
&-  3  Texas  Civ.  App.,  496. 
a'42  S.  W.,  792. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  127 

gation  in  the  county  court.  The  court  distinguished  the  case  from  suits 
for  liquidated  demands  when  the  real  cause  of  action  is  beyond  the 
jurisdictional  amount  and  the  plaintiff  gives  fictitious  credit  to  bring  the 
amount  sued  for  within  the  court's  jurisdiction,  as  in  Burke  v.  Adoue, 
3  Texas  Civil  Appeals,  496,  and  held  that  the  plaintiff  could  allege  the 
amount  of  his  damages  at  a  smaller  sum  and  the  defendant  could  not 
object. 

Ordinarily  in  suits  for  foreclosure  of  liens  on  personal  property  the 
amount  in  controversy  is  held  to  be  the  value  of  the  property  and  not 
the  amount  of  the  debt,  and  the  jurisdiction  is  consequently  fixed  by 
that  value.  The  question  was  thus  decided  at  an  early  date  and  it  has 
been  since  continuously  so  held.84 

The  principle  does  not  apply  when  the  lien  is  a  general  one'  under  a 
statute  as  a  landlord's  lien  on  the  property  of  the  tenant  on  the  rented 
premises.  In  such  cases  the  amount  of  the  debt  fixes  the  jurisdiction.85 

Still  another  form  of  the  question  presents  itself  in  cases  in  which 
a  party  is  sued  in  the  county  or  justice's  court  on  an  amount  within 
the  jurisdiction  of  the  court,  and  the  defendant  desires  to  plead  in  set- 
off  or  cross-action  a  claim  or  demand  above  the  jurisdictional  amount. 
It  seems  to  be  settled  that  this  can  not  be  done.  If,  however,  the  claim 
of  the  plaintiff  is  so  closely  connected  with  the  defendant's  demand  that, 
in  fact  and  in  law,  the  plaintiff's  claim  has  been  applied  as  a  credit  on 
that  of  the  defendant,  extinguishing  the  former  and  reducing  the  latter 
pro  tanto,  these  facts  may  be  shown  as  in  the  nature  of  a  payment  to  de- 
feat the  plaintiff's  recovery. SG 

It  sometimes  occurs  that  a  plaintiff  brings  suit  in  the  district  or 
county  court  for  a  sum  below  the  jurisdictional  amount  and  the  de- 
fendant pleads  in  reconvention  a  debt  or  claim  within  the  jurisdiction. 
Here  the  court  has  no  jurisdiction  until  the  cross-action  is  filed,  but 
when  that  comes  in,  it,  for  jurisdictional  purposes,  is  treated  as  the 
commencement  of  the  suit,  and  the  plaintiff's  claim  as  an  offset  or 
credit  on  the  defendant's  demand,  as  the  facts  may  require.87 

In  Smith  v.  Wilson,88  the  Court  of  Civil  Appeals  held  that,  if  the  court 
has  jurisdiction  to  issue  an  injunction  and  does  so,  the  defendant  may  in 
reconvention  sue  for  the  amount  of  the  judgment  sought  to  be  enjoined, 
even  though  such  amount  is  below  the  jurisdictional  amount  of  the  court. 


81  Marshall  v.  Taylor,  7  Texas,  235 ;  Lowe  v.  Howard,  22  Texas,  7 ;  Hargrave  v. 
Simpson,  25  Texas,  39G;  Smith  v.  Giles,  65  Texas,  341;  Cotula  v.  Goggan,  77 
Texas,  32,  13  S.  W.,  742;  Lake  Co.  v.  Austin  Electric  Co.,  30  S.  W.,  832. 

85  Dazey  v.  Fennington,  10  Texas  Civ.  App.,  326,  31  S.  W.,  312. 

86  Dalby  v.  Murphy,  25  Texas,  354 ;  Gimble  v.  Gomprecht,  89  Texas,  497,  35  S. 
W,  470. 

87  Phelps  &  Bigelow  Windmill  Co.  v.  Parker,  30  S.  W.,  365. 

88  44  S.  W.,  556. 


128  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

The  plaintiff  sometimes  intentionally  states  his  damage  at  an  amount 
greater  than  that  actually  sustained,  in  order  to  give  a  show  of  jurisdic- 
tion. Whenever  a  defendant  conceives  this  to  be  the  case,  he  must,  if 
he  wishes  to  avail  himself  of  the  point,  file  a  plea  in  abatement  under 
oath  raising  this  issue  and  have  this  plea  determined.  If  the  jury,  or 
the  judge,  if  no  jury  is  demanded,  finds  that  the  plaintiff  has  been  guilty 
of  such  misconduct,  the  case  will  be  dismissed.  There  is  a  very  interest- 
ing discussion  of  the  subject  and  of  the  cases  bearing  upon  it  in  a  recent 
decision  by  the  Supreme  Court.89  The  result  may  be  summarized  as 
follows : 

1.  The  amount  claimed  in  the  pleadings  and  not  the  amount  re- 
covered is  the  criterion  by  which  jurisdiction  is  to  be  determined. 

2.  The  defendant  may,  without  affecting  the  jurisdiction  of  the 
court,  reduce  the  amount  claimed  by  the  plaintiff  by  any  legitimate 
pleading  and  proof  at  his  command. 

3.  When  the  jurisdictional  averments  are  known  by  the  plaintiff  to 
be  untrue  and  are  made  for  the  purpose  of  deceiving  the  court,  and 
thus  procuring  a  hearing  on  his  cause  in  a  court  which  would  not  have 
jurisdiction  if  he  had  truly  set  out  his  cause  of  action,  such  conduct  is 
fraudulent,  and  if  properly  brought  to  the  attention  of  the  court,  will 
defeat  the  jurisdiction. 

4.  This  suggestion  of  fraud  can  only  be  made  by  plea  in  abatement 
sworn  to  and  filed  in  due  order,  that  is,  before  answer  to  the  merits.90 


Contested  Elections. 

The  clause  conferring  this  jurisdiction  is  an  innovation  in  Texas 
constitutional  law.  Nothing  similar  to  it  appears  in  any  of  our  Con- 
stitutions prior  to  the  amendments  of  1891.  Many  statutes  had  been 
passed  attempting  to  confer  such  jurisdiction  upon  the  courts,  but  no 
one  of  them  had  ever  been  sustained.  The  objections  were  fundamental, 
as  the  district  court  was  a  tribunal  created  by  the  Constitution  with 
enumerated  powers,  having  no  jurisdiction  except  over  suits,  complaints 
and  pleas  of  a  judicial  nature,  and  contests  over  elections  not  being  of 


89  Hoffman  v.  Building  and  Loan  Assn.,  85  Texas,  409,  22  S.  W.,  154. 

90  Sherwood  v.  Douthit,  6  Texas,  224;  Budd  v.  Ballew,  11  Texas,  269;  Graham 
v.  Roeder,  5  Texas,  145;  Dyer  v.  Batsell,  63  Texas,  276;  Railway  Co.  v.  Nichol- 
son, til  Texas,  552;  Roper  Bros.  v.  Brady,  80  Texas,  588,  16  S.  W.,  434;  Sulphen 
v.  Norris,  44  Texas,  209;   McDaniel  &  Co.  v.  Cherry,  64  Texas,  179;   Tidball  v. 
Eichoff,  GO  Texas,  58,  17  S.  W.,  263 ;  Ratigan  v.  Holloway,  69  Texas,  469,  6  S.  W., 
785 ;  Myers  v.  Jones,  4  Texas  Civ.  App.,  330,  23  S.  W.,  562 ;  Baker  v.  Terrell  & 
Guinn,  4  Texas  Civ.  App.,  539,  23  S.  W.,  604;  Railway  Co.  v.  Wilm  et  al.,  9  Texas 
Civ.  App.,  101,  28  S.  W.,  925;  Lawson  v.  Lynch,  9  Texas  Civ.  App.,  582,  29  S.  W., 
1128;  Massie  &  Rather  v.  Bank,  11  Texas  Civ.  App.,  270. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  129 

this  class,  the  Legislature  was  without  power  to  confer  authority  upon 
that  court  to  hear  them. 

Beginning  with  the  case  of  Bradley  v.  McCrable,01  and  continuing 
until  the  adoption  of  the  amendments  of  1891,  there  is  an  unbroken 
line  of  decisions  denying  the  existence  of  such  power  in  the  courts  under 
the  constitutional  grant  of  authority  and  also  the  power  of  the  Legisla- 
ture to  confer  it.92 

It  is  held  that  this  clause  of  the  Constitution  is  not  self-executing, 
nor  did  it  vitalize  the  previous  act  of  the  Legislature  on  the  subject, 
which  had  been  inoperative  for  lack  of  constitutional  authority.93 

In  1895,  the  Legislature  passed  an  act  prescribing  the  manner  of  pro- 
ceeding in  such  cases  and  the  jurisdiction  is  now  recognized  and  ex- 
ercised.94 

It  is  held  that  the  jurisdiction  of  the  district  court  is  exclusive  and  not 
dependent  on  the  amount  in  controversy.95 


Said  Courts  and  Judges  Thereof  Shall  Have  Power  to  Issue 
"Writs  of  Habeas  Corpus,  Mandamus,  Injunction,  and  Cer- 
tiorari,  and  All  Writs  Necessary  to  Enforce  Their  Jurisdic- 
tion. 

The  corresponding  clause  in  the  Constitution  of  1876  was  identical 
with  the  above,  except  that  the  words  "in  felony  cases"  occurred  after 
the  words  habeas  corpus. 

The  present  county  court  clause  is  in  these  words:  "The  county 
court  and  the  judge  thereof  shall  have  power  to  issue  writs  of  injunc- 
tion, mandamus,  and  all  writs  necessary  to  the  enforcement  of  the 
jurisdiction  of  said  court,  and  to  issue  writs  of  habeas  corpus  in  cases  in 
which  the  offense  charged  is  within  the  jurisdiction  of  the  county  court 
or  any  other  court  or  tribunal  inferior  to  said  court." 

This  clause  in  the  Constitution  of  1876  was  in  the  same  words,  except 
that  the  word  "other"  was  inserted  between  the  words  "all"  and  "writs," 
so  that  it  read,  "all  other  writs  necessary  to  the  enforcement,"  etc. 

The  judges  of  the  courts  are  also  named  in  these  grants  of  power,  but 
it  must  always  be  kept  in  mind,  that  no  judge,  merely  as  such,  can 

91Dallam,  504. 

82  Wright  v.  Fawcett,  42  Texas,  204 ;  Ex  Parte  Towles,  48  Texas,  413,  and  cases 
cited;  Gibson  v.  Templeton,  62  Texas,  555. 

""Odell  v.  Wharton,  87  Texas,  173,  27  S.  W.,  123. 

84  Acts  1895,  p.  58;   Batts'  Stats.,  art.  1793,  et  seq.;  Dean  v.  State,  88  Texas, 
291,  30  S.  W.,  1047;  State  v.  Thompson,  88  Texas,  229,  30  S.  W.,  1046. 

85  Dean  v.  State,  supra. 

9 — Pleadings. 


130  CIVIL   JURISDICTION   OF   DISTRICT   AND   COUNTY    COURTS. 

render  any  final  judgment  or  decision  in  any  cause.  The  writs  issued  by 
such  an  officer  are  interlocutory  or  preliminary  in  their  nature  and  the 
authority  to  render  final  decisions  in  the  causes  in  which  writs  are  issued 
rests  exclusively  in  the  courts. 

Habeas  Corpus. 

This  writ  is  not  ordinarily  a  civil  remedy,  and  hence  no  general  discus- 
sion of  it  is  required  here.  It  has,  however,  been  held  by  the  Court  of 
Criminal  Appeals  and  by  our  Supreme  Court  that  a  proceeding  by  habeas 
corpus  on  the  part  of  a  parent  to  obtain  possession  of  a  child,  or  by  a 
guardian  of  his  ward,  is  a  civil  action  and  the  district  court  and  their 
judges  have  jurisdiction  over  them,  and  that  jurisdiction  in  such  cases 
may  be  entertained  by  the  Courts  of  Civil  Appeals  and  by  the  Supreme 
Court.96 

Mandamus  and  Injunction. 

Mandamus  is  a  common  law,  not  an  equitable  writ.97  There  is  in  this 
State  no  constitutional  or  statutory  definition  of  this  writ;  nor  have 
I  found  one  in  any  Texas  decision  that  is  full  or  satisfactory.  At  com- 
mon law  it  was  defined  as  follows :  "A  writ  (formerly  a  high  prerogative 
writ)  which  issues  from  a  court  of  superior  jurisdiction  and  is  directed 
to  a  private  or  municipal  corporation  or  to  any  of  its  officers  or  to  an 
executive,  administrative,  or  judicial  officer,  or  to  an  inferior  court  com- 
manding the  performance  of  the  particular  thing  therein  specified  and 
belonging  to  his  or  their  public,  official,  or  ministerial  duty,  or  to  di- 
recting the  restoration  of  the  complainant  to  rights  or  privileges  of 
which  he  has  been  illegally  deprived."98  Mr.  Fishback99  defines  it  thus : 
"The  writ  of  mandamus  is  a  command  issuing  from  a  court  of  competent 
jurisdiction  in  the  name  of  the  State  directed  to  some  corporation  or 
officer,  or  inferior  court,  requiring  the  performance  of  a  particuar  duty 
therein  specified,  which  duty  results  from  the  official  station  of  the 
party  to  whom  the  writ  is  directed,  or  from  operation  of  law." 

Injunction  is  strictly  an  equitable  writ  and  is  never  issued  by  courts 
of  common  law  jurisdiction.  Mr.  High,  in  his  work  on  Injunctions,  says : 
"A  writ  of  injunction  may  be  defined  as  a  judicial  process  operating 
in  personam,  and  requiring  the  person  to  whom  it  is  directed  to  do  or 

96  Ex  Parte  Reed,  28  S.  W.,  089 ;  Ex  Parte  Berry,  28  S.  W.,  806 ;  Legate  v.  Le- 
gate, 87  Texas,  248,  28  S.  W.,  281. 

97  Merrill  on  Mandamus,  p.  2;  Tax  Collector  v.  Finley,  88  Texas,  522,  32  S.  W., 
524. 

98  Black's  Law  Diet.,  title  "Mandamus." 
-"  Manual  of  Elementary  Law,  sec.  585. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  131 

to  refrain  from  doing  a  particular  thing.  In  its  broadest  sense  the  pro- 
cess is  restorative  as  well  as  preventive,  and  it  may  be  issued  both  in  the 
enforcement  of  rights  and  in  the  preventation  of  wrongs.  In  general, 
however,  it  is  used  to  prevent  future  injury  rather  than  to  afford  redress 
for  wrongs  already  committed,  and  it  is  therefore  to  be  regarded  more 
as  a  preventive  than  as  a  remedial  process.  If  the  injury  be  already  com- 
mitted, the  writ  can  have  no  operation  to  correct  it,  and  equity  will  not 
interfere  for  purposes  of  punishment,  or  to  compel  persons  to  do  right, 
but  only  to  prevent  them  from  doing  wrong.  Nor  will  a  court  of  equity 
lend  its  aid  by  injunction  for  the  enforcement  of  right  or  the  preven- 
tion of  wrong  in  the  abstract,  and  unconnected  with  any  injury  or  dam- 
age to  the  person  seeking  the  relief. 

"Injunctions  are  known  as  mandatory  or  preventive,  according  as  they 
command  defendant  to  do  or  to  refrain  from  doing  a  particular  thing. 
While  the  jurisdiction  of  equity  by  way  of  mandatory  injunction  is  rarely 
exercised,  and  while  its  existence  has  even  been  questioned,  it  is  neverthe- 
less too  firmly  established  to  admit  of  doubt.  Mandatory  injunctions  are 
seldom  allowed  before  a  final  hearing,  though  they  may  be  granted  on 
interlocutory  applications." 

The  construction  placed  upon  these  clauses  in  the  Constitution  of 
1876  was  that  the  district  court  had  general  jurisdiction  to  issue  writs 
of  mandamus  and  injunction, — that  is,  that  those  courts  could  be  re- 
sorted to  and  could  give  relief  in  any  and  all  cases  in  which  either  of 
said  writs  was  a  proper  remedy  without  reference  to  the  amount  in  con- 
troversy or  to  whether  the  matter  were  capable  of  pecuniary  valuation; 
but  that  the  county  court  could  only  issue  such  writs  when  they  became 
necessary  in  the  progress  of  some  litigation  already  begun  and  pending 
in  such  court,  and  then  only  for  the  purpose  and  to  the  extent  of  enabling 
the  court  to  exercise  its  authority  over  matters  legitimately  before  it. 
This  difference  in  the  powers  of  the  two  courts  was  based  largely  on  the 
use  of  the  word  "other"  in  the  county  court  clause,  and  its  absence  in 
the  district  court  clause.100  The  change  in  the  present  Constitution  by 
the  omission  of  the  word  other  from  the  county  court  clause  does  not 
seem  to  have  been  called  to  the  attention  of  the  higher  courts  for  some 
time  after  the  amendments  of  1891  went  into  effect,  and  several  of  the 
earlier  cases  decided  under  those  amendments  take  no  notice  of  the 
change. 

The  first  mandamus  case  under  the  present  Constitution  expressly 
states  that  the  amount  in  controversy  does  not  effect  the  question  of 

100  County  of  Anderson  v.  Kennedy,  58  Texas,  616;  Hale  v.  McCoinas,  59  Texas, 
487;  Railway  Co.  v.  McDaiiiels,  62  Texas,  74;  Day  v.  Chambers,  62  Texas,  191; 
Chambers  v.  Cannon,  62  Texas,  294;  Camthers  v.  Harnett,  67  Texas,  129,  2  S. 
W.,  523;  Railway  Co.  v.  Ware,  74  Texas,  49,  11  S.  W.,  918. 


132  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

jurisdiction  in  mandamus  cases.101  This  can  hardly  be  considered  as 
authoritative,  because  at  that  time,  as  disclosed  by  the  record,  the  County 
Court  of  Shelby  County,  in  the  district  court  of  which  the  case  was 
tried,  had  no  civil  jurisdiction.  The  Legislature  had  transferred  such 
jurisdiction  to  the  district  court,  so  that  in  this  particular  county  the 
district  court  would  have  been  authorized  to  issue  the  writ,  even  though 
power  to  do  so  did  not  ordinarily  lie  in  the  district  court. 

The  case  of  Kimberly  v.  Morris,102  was  brought  in  the  district  court 
to  compel  by  mandamus  the  commissioners  court  to  order  a  local  option 
election.  There  was  no  ascertainable  pecuniary  interest  in  the  peti- 
tioners, nevertheless  the  jurisdiction  of  the  district  court  was  sustained. 

The  Supreme  Court  first  mentions  the  change  in  the  Constitution, 
in  Dean  v.  State,103  saying :  "The  omission  from  the  amendment  of  the 
word  'other'  had  escaped  our  attention  until  called  to  our  attention  by 
the  argument  in  support  of  this  motion.  It  results  from  the  previous  de- 
cisions of  this  court  that  the  omission  of  this  word  materially  changes  the 
meaning  of  the  provision  and  enlarges  the  power  of  the  county  court  to 
issue  writs  of  mandamus  and  injunction.  Anderson  Co.  v.  Kennedy,  58 
Texas,  616;  Carlyle  v.  Coffee,  59  Texas,  391." 

Johnson  v.  Hanscom,104  decided  by  the  Supreme  Court,  November  12, 
1896,  was  an  action  in  the  district  court  for  mandamus  to  compel  the 
delivery  of  a  warrant  in  the  favor  of  the  plaintiff  upon  the  county  treas- 
urer for  the  sum  of  $203.40.  Here  there  was  a  specific,  ascertainable 
money  value  of  the  matter  in  controversy.  The  Supreme  Court  says : 
"Under  the  amended  section  16  of  article  5  of  the  Constitution,  this 
proceeding  .might  properly  have  been  instituted  in  the  county  court. 
Before  the  amendment,  the  district  court  alone  had  power  to  issue  the 
writ  of  mandamus  except  when  it  was  necessary  to  enforce  the  jurisdic- 
tion of  some  other  court,  but  we  are  of  opinion  that  by  virtue  of  the 
amendment  the  county  court  has  power  to  issue  the  writ  in  any  case 
where  a  mere  moneyed  demand  is  involved  and  the  amount  of  that  de- 
mand exceeds  two  hundred  dollars  and  does  not  exceed  one  thousand 
dollars,  exclusive  of  interest.  Our  reasons  for  the  conclusion  are  given 
in  the  opinion  on  the  motion  for  rehearing  in  the  case  of  Dean  v.  State. 
88  Texas,  296."  Clearly  this  case  proceeds  on  the  idea  that  in  cases  of 
mandamus  when  the  amount  is  more  than  two  hundred  and  not  more  than 
one  thousand  the  jurisdictions  of  the  district  and  county  courts  are  con- 
current. 

The  Courts  of  Civil  Appeals  have  rendered  several  interesting  decis- 

101  Lucky  v.  Short,  1  Texas  Civ.  App.,  6,  20  S.  W.,  723,  decided  October  12,  1892. 

102  87  Texas,  637,  31  S.  W.,  808. 

103  88  Texas,  296,  31  S.  W.,  185,  decided  May  30,  1898. 

104  90  Texas,  321,  37  S.  W.,  601. 


DISTRICT    COURT DETAILED    CONSIDERATION.  133 

ions  on  this  subject.  In  Morrison  v.  Carnahan,105  the  court  in  the 
Fourth  District  decided  that  the  district  court  can  issue  an  injunction 
to  restrain  sale  of  exempt  property,  levied  on  in  the  justice  court,  irre- 
spective of  its  value,  citing  Stein  v.  Kleberg,  64  Texas,  271,  decided 
under  the  Constitution  of  1876.  In  Gulf,  Colorado  &  Santa  Fe  Kailway 
Company  v.  Blankinbeckler,106  the  Court  of  Civil  Appeals  in  the  Second 
District  uses  this  language :  "Section  8,  article  5  of  the  Constitution  of 
Texas  as  amended  September  22,  1891,  fixes  and  prescribes  the  jurisdic- 
tion of  the  district  courts,  specifying  the  various  matters  over  which 
they  are  given  jurisdiction.  In  one  clause  power  to  issue  the  writ  of 
injunction  is  expressly  conferred  without  specifying  any  limitation  as  to 
the  amount  involved  in  the  suit  or  subject  matter.  This  clause  of  this 
section  of  the  Constitution  so  far  as  it  applies  to  injunction  is  substan- 
tially the  same  as  contained  in  the  same  section  and  article  of  1876, 
which  in  Anderson  v.  Kennedy,  58  Texas,  621,  was  construed  by  our 
Supreme  Court  to  confer  jurisdiction  upon  the  district  court  to  grant  the 
writ  enjoining  the  county  of  Anderson  and  its  officers  from  levying  and 
collecting  a  tax  of  less  than  one  hundred  dollars.  And  the  Supreme 
Court  in  that  case  puts  the  jurisdiction  on  the  ground  that  the  power 
to  issue  the  writ  is  general  and  not  confined  to  cases  where  jurisdiction 
has  been  given  over  the  subject  matter  or  fixed  by  the  amount  in  con- 
troversy (citing  numerous  authorities).  It  may  be  that  the  county  court 
under  a  similar  clause  in  section  16  of  article  5  has  also  jurisdiction  to 
grant  this  writ,  Brown  v.  Young,  2  Posey  IJnrep.  Cases,  335 ;  .Dean  v. 
State,  88  Texas,  290;  Eev.  Stats.,  1895,  article  2989.  This,  however,  we 
do  not  mean  to  decide.  We  are  of  opinion  that  if  it  did  the  jurisdiction 
would  be  concurrent,  and  that  the  inserting  of  said  clause  in  section  16 
did  not  in  any  manner  deprive  the  district  court  of  its  power  in  such 
cases.  We  are  therefore  of  opinion  that  appellee's  cross  assignment  of 
errors  are  not  well  taken,  and  the  district  court  had  jurisdiction  to  issue 
the  writ  and  try  the  cause." 

This  was  a  suit  to  enjoin  a  judgment  of  the  justice  court  for  sixteen 
dollars,  which  was  claimed  to  be  void. 

One  of  the  most  interesting  decisions  on  this  subject  is  from  the  same 
court  of  date  February  13,  1897,  in  the  case  of  Lazarus  v.  Swafford,107 
The  opinion  is  as  follows: 

"This  suit  which  was  brought  in  the  District  Court  of  Collingsworth 
County  to  enjoin  the  tax  collector  from  selling  twenty-seven  head  of 
appellant's  cattle  under  an  alleged  assessment  of  taxes,  amounting  to 
$350,  was  dismissed  for  want  of  jurisdiction,  and  the  preliminary  injunc- 
tion consequently  dissolved;  hence  this  appeal.  If  the  precise  question 

**  31  S.  W.,  436,  May  29,  1895. 

108  13  Texas  Civ.  App.,  249,  33  S.  W.,  331,  April  4,  1896. 

107  15  Texas  Civ.  App.,  367,  39  S.  W.,  389. 


134  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY    COURTS. 

thus  raised  had  been  authoritatively  decided,  we  are  not  aware  of  it.  Be- 
fore the  adoption  of  the  amendment  to  article  5  of  the  Constitution, 
which  has  remodeled  that  entire  article,  it  was  decided  that  the  district 
courts,  under  the  express  power  given  in  the  Constitution  to  issue  in- 
junctions and  other  writs  named,  had  jurisdiction  in  cases  in  which  a 
court  of  chancery  would  have  taken  jurisdiction  in  order  to  afford  relief 
by  injunction,  without  reference  to  the  amount  in  controversy.  Ander- 
son Co.  v.  Kennedy,  58  Texas,  616.  This  conclusion  was  stated  in  the 
opinion  of  Justice  Stayton  to  have  resulted  from  'the  consideration  of 
the  several  provisions  of  the  Constitution/  of  which  the  bill  of  rights, 
declaring  in  substance  that  every  person,  for  an  injury  done  him  in  prop- 
erty, person,  or  reputation,  should  have  a  remedy,  was  adverted  to;  and 
also  section  16  of  article  5,  limiting  the  power  of  county  courts  to  issue 
writs  of  injunction,  mandamus,  etc.,  to  cases  where  it  was  necessary  to 
the  enforcement  of  their  jurisdiction.  An  apparent  omission  of  the  Con- 
stitution seems  thus  to  have  been,  in  effect,  supplied  by  judicial  construc- 
tion, and  the  very  necessity  of  the  case  doubtless  had  its  effect  in  the 
production  of  this  result;  but  the  amendment  of  the  judiciary  article, 
probably  owing  to  the  fact  that  difficulties  were  encountered  in  the  case 
cited,  with  others  of  its  class,  has  removed  these  difficulties,  and  made 
plain  the  purpose  of  said  article  in  its  distribution  of  jurisdiction  among 
the  several  courts  of  Texas.  This  amendment,  according  to  recent  de- 
cisions of  our  Supreme  Court,  has  introduced  with  the  changes  made 
a  change  of  construction.  Dean  v.  State,  88  Texas,  290,  30  S.  W.,  1047, 
and  31  S.  W.,  185;  Johnson  v.  Hanscomb  (Texas  Sup.),  37  S.  W.,  601. 
In  order- to  avoid  any  possible  misconstruction  of  the  following  explicit 
language  of  section  16,  article  5,  defining  the  jurisdiction  of  the  county 
courts, — 'And  they  shall  have  exclusive  jurisdiction  in  all  cases  when 
the  matter  in  controversy  shall  exceed  in  value  $200  and  not  exceed 
$500,  exclusive  of  interest/ — the  amendment  thereof  entirely  removes 
the  restriction  which  previous  decisions  had  construed  as  depriving 
county  courts  of  the  power  to  issue  injunction,  mandamus,  etc.,  when 
not  necessary  to  the  enforcement  of  their  jurisdiction.  In  the  case  last 
cited  it  was  held  that  the  amount  in  controversy  should  be  looked  to  in 
determining  whether  the  county  court,  since  the  amendment,  has  juris- 
diction in  a  mandamus  case.  It  would  seem  to  follow  from  this  holding 
that  the  language  of  the  Constitution  above  quoted,  where  the  amount 
is  between  $200  and  $500,  as  in  this  case,  excludes  the  jurisdiction  of 
any  other  than  the  county  court  in  both  mandamus  and  injunction  cases. 
It  certainly  could  not  have  been  the  intention  of  the  framers  of  the 
amendment  to  make  the  jurisdiction  of  the  county  and  district  courts 
concurrent  in  such  cases.  That  would  be  inconsistent  with  the  whole 
tenor  of  the  judiciary  article,  and  particularly  of  section  16,  which 
defines  so  accurately  the  extent  both  of  the  exclusive  and  concurrent 
jurisdiction  of  the  county  court.  And.  in  order  to  avoid  a  recurrence  of 
any  such  difficulties  as  confronted  the  court  when  the  Anderson  County 
case  was  decided,  and  to  put  this  matter  forever  at  rest,  the  amendment 
further  provides,  in  defining  the  jurisdiction  of  the  district  court,  that 


DISTRICT    COURT DETAILED    CONSIDERATION.  135 

it  shall  have  'general  original  jurisdiction  over  all  causes  of  action  what- 
ever for  which  a  remedy  or  jurisdiction  is  not  provided  by  law  or  this 
Constitution.'  Our  conclusion,  therefore,  is  that,  as  the  amount  in  con- 
troversy is  now  made  the  test  of  the  county  court's  jurisdiction  in  all 
cases  alike,  where  that  amount  exceeds  $200  and  does  not  exceed  $500, 
the  jurisdiction  of  the  county  court  is  exclusive,  notwithstanding  the 
general  power  conferred  in  section  8  upon  district  courts  to  issue  writs 
of  injunction  and  mandamus.  The  general  provision  should  be  read 
in  the  light  of  the  changes  before  considered,  clearly  indicating  an  in- 
tention to  confer  upon  county  courts  as  a  part  of  their  jurisdiction  the 
power 'to  issue  writs  of  injunction  in  cases  where  courts  of  chancery, 
under  the  settled  principles  of  equity,  would  issue  them,  but  limiting 
such  power  to  cases  in  which  jurisdiction  depends  upon  the  amount  in 
controversy,  and  making  that  jurisdiction  exclusive  or  concurrent,  ac- 
cording to  the  amount.  This  conclusion  is  strengthened  by  the  de- 
cisions in  Erwin  v.  Blanks,  60  Texas,  583,  and  Kailway  Co.  v.  Rain- 
bolt,  67  Texas,  654,  4  Southwestern  Reporter,  356,  holding  that  the  gen- 
eral provisions  of  section  8  should  yield  to  the  more  specific  ones  of 
section  16.  As  amended,  section  16  confers  upon  the  county  courts, 
as  courts  both  of  law  and  equity,  within  the  prescribed  limits,  all  the 
power  conferred  upon  the  district  courts,  within  their  sphere  of  action, 
and  within  the  amounts  above  specified  expressly  excludes  the  jurisdic- 
tion of  all  other  courts.  Judgment  affirmed." 

Smith  v.  Kitchens,108  reiterates  the  doctrine  that  the  district  court  has 
jurisdiction  to  enjoin  the  sale  of  property  levied  on.  by  execution  issued 
from  a  justice's  court. 

In  Jackson  v.  Finley,108a  a  suit  brought  in  the  county  court  to  enjoin 
a  sale  under  execution  from  the  district  court,  on  a  judgment  for  six 
hundred  and  ninety  dollars,  and  to  compel  the  plaintiff  in  execution  to 
allow  a  credit  on  the  judgment  of  one  hundred  and  ninety-seven  dol- 
lars, it  was  held  that  the  jurisdiction  to  compel  the  credit  and  perpetually 
enjoin  execution  for  that  sum  existed  in  county  court.  It  must  be  ob- 
served that  the  sale  enjoined  was  under  an  execution  for  an  amount 
within  the  county  court's  jurisdiction,  and  its  jurisdiction  having  at- 
tached in  the  case  under  its  equity  powers,  it  could  make  such  final  dis- 
position of  the  motion  as  the  law  and  facts  demanded. 

Jennings  v.  Shiner109  again  announces  the  doctrine  of  the  district 
court's  jurisdiction  to  enjoin  judgments  of  justices'  courts.  There  are 
some  expressions  as  to  when  such  jurisdiction  may  properly  be  exercised 
which  may  not  prove  to  be  in  harmony  with  the  law,  but  as  to  the  exist- 
ence of  the  power  in  the  district  court,  the  opinion  is  well  supported. 

108  40  S.  W.,  42,  Court  of  Civil  Appeals,  second  District,  March  20,  1897. 
iosa  40  s.  \y     42^  Court  of  Civil  Appeals,  Third  District,  March  31,  1897. 

109  43  S.  W.,  276,  Court  of  Civil  Appeals,  November  17,  1897. 


136  CIVIL    JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 

In  Irvin  v.  Edwards,110  the  Supreme  Court  affirmed  the  judgment 
of  the  District  Court  of  LaSalle  County,  enjoining  the  collection  of 
one  hundred  and  forty-seven  dollars  as  tax  on  personal  property.  No 
point  was  made  as  to  the  jurisdiction  of  the  district  court  in  the  trial 
of  the  case,  but  on  motion  for  rehearing  in  the  Supreme  Court  it  was 
insisted  that,  as  the  present  constitutional  provisions  regarding  district 
and  county  courts  were  the  same,  and  both  were  similar  to  the  district 
court  clause  in  the  Constitution  of  1876,  the  'Writ  might  have  been 
issued  by  the  county  court,  and  therefore  the  Supreme  Court  was  with- 
out jurisdiction  to  issue  the  writ  of  error  or  hear  the  case.  The  motion 
was  overruled  and  the  injunction  made  perpetual.  No  written  opinion 
was  filed  on  the  motion.  This  action  seems  to  indicate  that  the  Su- 
preme Court  regards  the  jurisdiction  of  the  district  court  to  issue  in- 
junctions when  the  amount  is  less  than  two  hundred  dollars  as  exclusive, 
though  it  is  possible  that  the  case  was  dealt  with  as  involving  a  ques- 
tion of  "revenue  law"  and  for  that  reason  the  action  of  the  Court  of 
Civil  Appeals  was  not  final. 

In  Winstead  v.  Evans,111  it  is  held  by  the  Court  of  Civil  Appeals 
that,  as  the  county  court  now  has  appellate  jurisdiction  and  supervisory 
control  over  justices'  courts,  the  jurisdiction  of  the  county  court  to 
compel  by  mandamus  the  entry  of  final  judgment  by  a  justice  of  the 
peace,  in  a  case  appealed  from  his  court  to  the  county  court,  is  exclusive. 
Under  such  circumstances  the  district  court  is  without  authority  to  issue 
the  writ. 

Eevised  Statutes,  article  4861,  prohibits  the  issuance  by  the  district 
courts  of  the  writ  of  mandamus  against  the  head  of  any  department  of 
the  government.  The  power  to  issue  such  writs  against  all  State  officers, 
except  the  Governor,  and  against  district  judges  is  now  conferred  upon 
the  Supreme  Court  as  original  jurisdiction. 

The  following  seems  to  be  the  result  of  the  Constitution  and  statutes 
as  construed  by  the  court : 

Neither  the  district  nor  county  courts  can  issue  writs  of  mandamus 
against  the  Governor  or  head  of  any  department  of  the  State  govern- 
ment. If  the  matter  in  controversy  has  no  ascertainable  money  value, 
then  writs  of  mandamus  concerning  it  may  be  issued  by  the  district 
court112  The  same  seems  to  be  true  if  the  value  is  doubtful  in  amount 
and  no  allegation  of  value  is  made.113  Doubtless  the  same  is  true  of  in- 
junction. 

Whether  such  jurisdiction  is  exclusive  has  not  been  expressly  decided, 
but  evidently  this  is  the  case. 

In  cases  of  moneyed  value  and  where  the  writ  is  not  desired  in  aid  of 

ll*92  Texas,  258,  47  S.  W.,  719. 

111  33  S.  W.,  580. 

112  Kimberly  v.  Morris,  87  Texas,  637,  31  S.  W.,  808. 

113  Jackson  v.  Swayne,  92  Texas,  242,  47  S.  W.,  711;  Town  of  Pearsall  v.  Wools, 
50  S.  W..  959. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  137 

a  jurisdiction  already  being  exercised  by  the  county  court,  the  district 
court  has  jurisdiction,  if  the  amount  is  over  one  thousand  dollars,  or  is 
two  hundred  dollars,  or  less.114  The  jurisdiction  in  such  cases  is  ap- 
parently exclusive. 

In  cases  of  moneyed  value  and  when  the  writ  is  not  in  aid  of  existing 
jurisdiction,  the  jurisdiction  of  the  two  classes  of  courts  is  concurrent 
when  the  amount  is  over  five  hundred  and  not  over  one  thousand 
dollars.115  If  the  amount  is  over  two  hundred  and  not  over  five  hun- 
dred dollars,  the  Supreme  Court  refuses  to  grant  writs  of  error  in  cases 
originating  in  the  district  court,  thus  indicating  that  it  regards  the 
jurisdiction  as  concurrent  in  the  district  and  county  courts,116  though 
it  has  not  expressly  decided  the  question. 

The  Court  of  Civil  Appeals  at  Galveston  has  held  that  the  district 
court  has  jurisdiction  in  these  cases,  but  has  not  passed  on  the  county 
court's  jurisdiction.117 

The  Court  of  Civil  Appeals  at  Fort  Worth  has  held  that,  in  such 
cases,  the  jurisdiction  of  the  county  court  is  exclusive.118 

These  seem  to  be  the  rules  as  to  ordinary  cases  of  mandamus  or  in- 
junction, but  different  considerations  control  .when  the  purpose  of  the 
suit  is  to  prevent  or  cure  the  abuse  of  legal  process  issued  in  a  case 
pending  or  based  on  a  judgment  or  decree  already  rendered.  In  such 
cases,  the  process — injunction,  mandamus,  or  other  writ — by  which  the 
abuse  of  the  prior  process  is  sought  to  be  prevented  or  controlled  must 
emanate  from  the  court  originally  exercising  jurisdiction  in  the  case, 
and  from  which  the  abused  process  issued,  unless  by  its  nature  such 
court  is  entirely  without  power  to  render  efficient  relief.119 

As  both  district  and  county  courts  are  fully  capable  of  controlling 
their  own  process,  whenever  the  writ  issues  from  one  of  them  the  control 
must  be  exercised  not  alone  by  a  court  of  the  class  from  which  the 
abused  process  issued,  but  by  the  very  court  issuing  it.120 

It  must  be  borne  in  mind  that  this  is  not  a  question  of  concurrent  or 
exclusive  jurisdiction  between  two  or  more  classes  of  courts,  but  of  the 
lawful  right  and  capacity  of  any  given  court  of  any  class  to  control  its 
own  process  and  rectify  any  mistake  or  abuses  occurring  thereunder. 

If  the  process  which  is  being  abused  issues  from  the  justice's  court, 
that  court  is  without  power  in  many  instances  to  correct  the  wrong, 

114  Morrison  v.  Carnahan,  31  S.  W.,  436;  G.  C.  &  S.  F.  Ry.  Co.  v.  Blankenbeckler, 
13  Texas  Civ.  App.,  249,  33  S.  W.,  331;  Smith  v.  Kitchens,  40  S.  W.,  42;  Jennings 
v.  Shiner,  43  S.  W.,  276;  Irvin  v.  Edwards,  92  Texas,  258,  47  S.  W.,  719. 

115  Johnson  v.  Hanscom,  90  Texas,  321,  37  S.  W.,  601;  Dean  v.  State,  88  Texas, 
296,  31  S.  W.,  185;  Lazarus  v.  Swafford,  15  Texas  Civ.  App.,  367,  39  S.  W.,  389. 

""Johnson  v.  Hanscom,  supra. 

117  Johnson  v.  Hanscom,  37  S.  W.,  453. 

118  Lazarus  v.  Swafford,  supra. 

118  Miller  v.  Koertge,  70  Texas,  167,  7  S.  W.,  691. 

120  Jackson  v.  Finley,  40  S.  W.,  427;  Lincoln  v.  Anderson,  51  S.  W.,  278. 


138  CIVIL   JURISDICTION   OF   DISTRICT   AND   COUNTY    COURTS. 

and  if  the  amount  is  two  hundred  dollars  or  less,  the  power  to  do  so  is 
in  the  district  courts;  if  it  is  over  two  hundred  and  not  over  one  thou- 
sand dollars,  the  district  court  still  has  power  to  correct,  though  the 
exclusiveness  of  this  latter  power  is  more  doubtful.121 

Writs  of  mandamus  to  control  the  ministerial  action  of  a  justice  of  the 
peace  as  to  a  case  pending  before  him  must,  however,  be  issued  by  the 
county  court  of  the  proper  county.122 

Certiorari. 

This  writ  is  issuable  either  by  court  of  common  law  or  equity.  Black' & 
Dictionary  defines  it  as  follows:  "Certiorari:  (To  be  informed  of; 
to  make  certain  in  regard  to.)  The  name  of  a  writ  issued  by  a  superior 
court  directing  an  inferior  court  to  send  up  to  the  former  some  pending 
proceeding,  or  all  the  record  and  proceedings  in  a  cause  before  verdict, 
with  its  certificate  of  the  correctness  and  completeness  of  the  record  for 
review  or  trial,  or  it  may  serve  to  bring  up  the  record  of  a  case  already 
terminated  below,  if  the  inferior  court  is  one  not  of  record,  or  in  cases 
where  the  procedure  is  not  according  to  the  course  of  the  common  law. 
Originally  and  in  English  practice  a  certiorari  is  an  original  writ  issu- 
ing out  of  the  court  of  chancery  or  the  king's  bench  and  directed  in  the 
king's  name  to  the  judges  or  officers  of  inferior  courts  commanding 
them  to  certify  or  return  the  records  or  proceedings  in  a  cause  depend- 
ing before  them  for  the  purpose  of  a  judicial  review  of  their  action." 

The  principal  office  of  this  writ  in  the  district  court  is  to  remove  to 
that  court  proceedings  in  administration  or  guardianship,  or  similar 
matters,  from  the  county  court,  and  in  the  county  court  is  to  remove 
into  it  cases  tried  in  the  justice's  court.  It  is  the  writ  by  which  each  of 
these  courts  exercises  its  supervisory  control  over  the  inferior  courts 
subject  thereto  in  all  cases  beside  those  in  which  appeals  are  taken.  The 
issuance  of  the  writ  and  proceedings  thereunder  are  regulated  by  statute, 
by  the  district  court  by  title  15,  chapter  1,  and  by  the  county  court,  by 
title  15,  chapter  2,  Eevised  Statutes  of  1895.  A  number  of  the  most 
important  cases  with  reference  to  this  writ  are  given  below.123 

121  Gibson  v.  Moore,  22  Texas,  615;  Miller  v.  Koertge,  70  Texas,  167,  7  S.  W., 
691;  Smith  v.  Perkins,  81  Texas,  154,  16  S.  W.,  805. 

122  Winstead  v.  Evans,  33  S.  W.,  580, 

123  District  Court  Cases:     Moore  v.  Hardison,  10  Texas,  467;  Newsom  v.  Chris- 
man,  9  Texas,  113;   Connell  v.  Chandler,  11  Texas,  249;   Hefflefinger  v.  George, 
14  Texas,  569;  Ledbetter  v.  Swing,  19  Texas,  242;  Reese  v.  Hamilton,  20  Texas, 
668;  Coupland  v.  Tullar,  21  Texas.  523;  Timmins  v.  Lacey,  30  Texas,  116;  Bar- 
clay v.  Cameron.  25  Texas,  233;   Oldham  v.  Mclver,  49  Texas,  556;   Franks  v. 
Chapman,  60  Texas,  46,  and  61  Texas,  580;  Buchanan  v.  Bilger,  64  Texas,  589; 
Hamman  v.  Lewis,  34  Texas.  475. 

County  Court  Cases:  Ford  v.  Williams,  6  Texas,  311 ;  Sheldon  v.  San  Antonio, 
25  Texas  Supp.,  177 ;  Criswell  v.  Richter,  13  Texas,  18 ;  King  v.  Longcope,  7  Texas, 
239;  Connally  v.  Renn,  17  Texas,  125;  Haley  v.  Villeneuve,  11  Texas,  617;  Rail- 
way v.  Scott,'  78  Texas,  360,  14  S.  W.,  791 :  Railway  v.  Cannon,  88  Texas,  312, 
31  S.  W.,  498;  Dimmit  v.  Salmon,  35  S.  W.,  752. 


DISTEICT    COURT DETAILED    CONSIDERATION.  139 

All  Writs  Necessary  to  Enforce  Their  Jurisdiction. 

This  clause  really  adds  nothing  to  the  jurisdiction  of  the  courts,  as 
this  power  is  inherent  in  them.  It  is  placed  in  the  Constitution  to  cut 
off  controversy  or  question,  as  to  the  lawful  right  existing  in  the  court 
or  judge,  to  issue  any  and  all  writs  or  process,  known  to  the  courts  of 
either  common  law  or  equity,  which  may  be  needed  to  enable  the  tribunal 
to  effectually  discharge  the  important  duties  entrusted  to  it. 

Appellate  Jurisdiction  of,  and  Supervision  by  District  Courts  in 
Probate  Matters. 

"The  district  court  shall  have  appellate  jurisdiction  and  general  con- 
trol in  probate  matters  over  the  county  court  established  in  each  county, 
for  appointing  guardians,  granting  letters  testamentary  and  of  admin- 
istration, and  probating  wills ;  for  settling  accounts  of  executors,  admin- 
istrators, and  guardians,  and  the  transaction  of  all  business  appertain- 
ing to  estates." 

This  clause  confers  no  original  jurisdiction  upon  the  district  court 
in  probate  matters,  but  only  gives  it  supervision  and  control  over  the 
county  courts  with  regard  thereto,  which  may  be  exercised  either  by 
appeal  or  by  writ  of  certiorari  as  provided  by  statute.  Hence  no  original 
proceeding  such  as  application  to  probate  a  will  can  be  begun  there,  ex- 
cept in  cases  of  disqualification  of  county  judges.124 

If,  however,  the  cause  of  action  be  such  that  under  the  general  prin- 
ciples of  law  the  district  court  has  jurisdiction  over  the  subject  matter, 
this  jurisdiction  is  not  defeated  because  an  executor,  administrator,  or 
guardian  is  a  necessary  or  proper  party.125 

This  explanation  must  be  made :  These  courts,  the  district  and  the 
county  court,  not  sitting  as  a  court  of  probate,  have  jurisdiction  over 
suits  of  this  sort,  but  from  considerations  of  public  policy  the  law  pro- 
vides that  such  power  should  not  be  exercised  as,  to  liquidated  demands 
for  money  until  an  effort  has  been  made  to  collect  from  the  admin- 
istrator or  executor  through  the  probate  court.  If  the  claim  is  allowed 
by  the  representative  of  the  estate  and  is  approved  by  the  probate  court, 
such  approval  becomes  a  judgment ;  if  the  claim  is  rejected  by  the  repre- 
sentative of  the  estate,  suit  must  then  be  brought  on  it  within  ninety 
days  in  the  court  having  jurisdiction  in  the  case,  tested  by  ordinary 
standards.  If  the  claim  is  allowed  by  the  representative  of  the  estate 
but  disproved  by  the  probate  court,  this  is  a  judgment  against  the  claim- 
ant and  appeal  will  lie  therefrom  to  the  district  court.126 

124  Frank  v.  Chapman,  60  Texas,  46 ;  Heath  v.  Lane,  62  Texas,  690 ;  Buchanan 
v.  Bilger,  64  Texas,  589. 

las  Williams  v.  Robinson,  56  Texas,  349;  Timmins  v.  Bonner,  58  Texas,  559; 
Fisher  v.  Wood,  65  Texas,  204. 

"•Rev.  Stats.  1895,  arts.  2063  through  2090;  Garrett  v.  Gaines,  6  Texas,  435; 
Merle  v.  Andrews,  4  Texas,  214;  Robinson  v.  McDonald,  11  Texas,  385;  Evans 


140  CIVIL   JURISDICTION    OF   DISTRICT   AND   COUNTY   COURTS. 

There  are  also  material  limitations  on  the  court's  power  to  enforce 
its  judgments  rendered  in  such  cases.  Ordinarily  the  court  rendering 
the  judgment,  carries  it  into  effect  and  enforces  it  by  its  own  process, 
but  in  these  cases  where  moneyed  judgments  are  recovered  against  an 
administrator  or  an  executor  subject  to  the  probate  court,  there  is  no 
such  power,  but  the  district  court  enters  judgment,  fixing  the  amount 
and  declaring  what  securities,  if  any,  exist,  and  then  certifies  this  judg- 
ment to  the  probate  court  where  the  estate  is  pending,  for  payment  in 
due  course  of  administration.  Here  we  have  an  illustration  of  the 
existence  of  the  first  and  second  phases  of  judicial  power,  power  of  hear- 
ing, and  power  of  adjudging,  but  the  absence  of  the  third,  power  of  en- 
forcing.127 

Suits  may,  however,  be  brought  in  the  district  court  against  an  in- 
dependent administrator  of  community  property,  or  an  independent 
executor  under  a  will  in  same  manner  as  against  a  party  in  his  individual 
capacity.128 

There  are  numerous  and  interesting  cases  on  the  jurisdiction  of  the 
district,  and  of  county  courts  not  sitting  in  probate,  over  matters  affect- 
ing the  interests  of  persons  who  have  inherited  property.  It  seems  to  be 
definitely  settled  that  the  heirs  of  a  person  dying  intestate  are  at  once 
entitled  to  the  possession  and  enjoyment  of  his  estate,  and  that  the  ad- 
ministration is  only  allowed  in  order  to  protect  the  rights  and  inter- 
ests of  creditors;  therefore,  if  no  debts  exist  against  the  estate  there 
is  no  necessity  for  administration,  and  the  probate  court  has  no  jurisdic- 
tion to  open  one.  It  follows  from  this  that  in  such  state  of  facts  the 
heirs  can  maintain  any  suit  in  the  district  or  county  court  which  the 
deceased  person  could  have  done,  and  that  a  suit  for  partition  among 
them  may  be  brought  and  maintained  in  the  district  court.  It  is  the 
established  rule  that  persons  seeking  to  maintain  suits  as  heirs  in  these 
exceptional  cases  must  show  the  existence  of  facts  relieving  from  the 
necessity  of  administration.  This  may  be  done  either  by  affimative 
allegations  and  proof  that  no  facts  existed  at  date  of  the  death  of  the 
person  from  whom  the  inheritance  comes  requiring  administration  or 
such  lapse  of  time  since  his  death  as  to  prevent  administration.129 

v.  Hardeman,  15  Texas.  480;  Bullian  v.  Campbell,  27  Texas,  (553;  King  v.  Cassidy, 
36  Texas,  5.31 ;  Ferrill  v.  Mooney,  33  Texas,  290;  Blum  v.  Welborne,  58  Texas,  157; 
Watt  v.  White,  46  Texas,  338 ;  Bason  v.  Hughart,  2  Texas,  476 ;  Schmidt  v.  Huff, 
7  Texas  Civ.  App.,  593;  Thorn  v.  State,  10  Texas,  295;  Lewis  v.  Nichols,  38 
Texas,  54;  Carrol  v.  Carrol,  20  Texas,  732;  Northcraft  v.  Oliver,  74  Texas,  162, 
11  S.  W.,  1121 ;  Cain  v.  Woodward,  74  Texas,  549,  12  S.  W.,  319;  Taylor  v.  Snow, 
47  Texas,  462;  Thompson  v.  Jones,  12  S.  W.,  79;  Smithwick  v.  Kelly,  79  Texas, 
564,  15  S.  W.,  486;  Fortson  v.  Caldwell,  17  Texas,  627;  Paxton  v.  Meyer,  67 
Texas,  96,  2  S.  W.,  817;  McCormick  v.  McXeel,  53  Texas,  15;  Jackson  y.  Mumford, 
74  Texas,  104,  11  S.  W.,  1061;  Williams  v.  Robinson,  56  Texas,  347. 

i::7Rev.  Stats.   1895,  art.  2068. 

li8Jerrard  v.  McKenzie,  61  Texas,  40;  Cleveland  v.  Cleveland,  89  Texas,  445, 
30  "S.  W.,  825. 

123Cochran  v.  Thompson,  18  Texas,  652;  Patton  v.  Gregory,  21  Texas,  513; 
Sanders  v.  Devereux,  25  Texas  Supp.,  1;  Giddings  v.  Steele,  28  Texas,  733; 
Webster  v.  Willis,  56  Texas,  468;  Fort  v.  Fills,  66  Texas,  593,  1  S.  W.,  563. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  141 

Original  Jurisdiction  and  Control  Over  Executors,  Administra- 
tors, Guardians,  and  Minors,  Under  Such  Regulations  as 
May  be  Prescribed  by  Law. 

No  provision  similar  to  this  is  contained  in  any  Texas  Constitution 
prior  to  1866.  We  find  it  in  the  Constitution  of  that  date  in  the  exact 
words  in  which  it  appears  in  the  present.  It  was  dropped  from  the  Con- 
stitution in  1869,  and  was  reincorporated  in  that  of  1876.  It  is  not 
self-operating,  and  as  no  statutes  have  been  passed  authorizing  action 
thereunder,  this  original  jurisdiction  can  not  be  exercised  by  the  district 
court. 

This  clause  and  the  one  next  preceding,  as  they  appear  in  the  Con- 
stitution of  1876,  are  parts  of  the  same  sentence.  The  powers  of  the 
courts  thereunder  have  been  several  times  passed  upon,  as  considerable 
difference  of  opinion  was  entertained  by  members  of  the  bar  as  to  the 
jurisdiction  of  the  district  and  county  courts  over  suits  connected  with 
or  growing  out  of  estates.  Probate  jurisdiction  properly  includes  the 
opening  of  administration  in  proper  cases  on  the  estates  of  deceased  per- 
sons, minors,  and  others  not  sui  juris;  the  appointment  of  some  one  to 
represent  the  estate;  the  general  supervision  and  control  of  the  estate 
until  the  purposes  for  which  it  is  being  administered  are  accomplished 
and  a  settlement  is  had  between  the  representative  and  the  beneficiaries. 
Matters  outside  of  these  and  which  involve  legal  rights  and  duties  be- 
tween the  estate  and  third  parties  not  sustaining  any  fiduciary  relation 
to  the  estate  are  not  matters  of  probate  jurisdiction.  These  distinctions 
are  sometimes  difficult  to  apply.  For  instance,  the  settlement  of  the 
accounts  between  an  administrator  and  the  estate,  so  long  as  he  remains 
in  office,  are  matters  strictly  within  the  power  of  the  probate  court.  If, 
however,  the  administrator  should  die  or  abscond,  or  resign  without 
having  first  made  a  settlement,  and  an  administrator  de  bonis  non  were 
appointed,  suit  by  him  against  his  predecessor  and  his  sureties  must  be 
brought  in  the  district  or  county  court  for  civil  business  according  to 
the  amount  involved.130  In  1876,  the  Legislature,  not  having  in  view 
the  distribution  of  power  among  the  different  courts  created  in  the  Con- 
stitution, undertook  to  confer  upon  the  probate  court  jurisdiction  to 
render  judgment  against  the  bondsmen  of  defaulting  guardians  and 
their  sureties.131 

In  the  case  of  Timmins  v.  Bonner  &  Long,132  this  legislation  came 
before  the  Supreme  Court  for  construction  and  enforcement.  The  court 
very  carefully  compared  the  various  provisions  of  the  Constitution  with 
reference  to  probate  matters,  and  came  to  the  conclusion  that  the  at- 
tempt to  confer  this  power  on  the  probate  court  was  unconstitutional 

130  Portia  v.  Cummins,  14  Texas.  140;  Davis  v.  Harwood,  70  Texas,  71,  8  S.  W., 
58;  Long  v.  Wooters,  18  Texas  Civ.  App.,  35,  45  S.  W.,  165. 

131  Kev.  Stats.  1879,  arts.  2695,  2696. 

132  58  Texas,  554. 


142  CIVIL   JURISDICTION   OF   DISTRICT   AND   COUNTY    COURTS. 

and  void,  and  that  suit,  contemplated  by  the  statute,  could  be  brought 
only  in  the  district  court  or  in  the  county  court  in  exercise  of  its  civil 
jurisdiction  according  to  the  amount  involved.  This  case  reviews  at 
length  the  preceding  decisions  by  the  Supreme  Court  upon  the  subject 
and  is  most  instructive. 

In  Nicholson  v.  Harvey,133  decided  February  21,  1894,  the  Court  of 
Civil  Appeals  held  that  after  an  administration  is  closed  the  probate 
court  has  no  jurisdiction  of  a  suit  by  the  widow  and  children  of  the 
decedent  against  the  administrator  and  his  attorney  to  set  aside  the  sale 
of  land  made  through  the  probate  court  on  account  of  alleged  fraud  in 
procuring  and  conducting  the  sale. 

In  the  case  of  Telschow  v.  House,134  decided  June  20,  1895,  it  is  held  by 
the  Court  of  Civil  Appeals  that  as  the  homestead  of  a  family  formed  110 
part  of  the  estate  of  a  decedent,  subject  to  administration  in  the  probate 
court,  the  district  court  has  jurisdiction  to  foreclose  a  mechanics'  lien  on 
such  homestead  in  a  suit  brought  against  the  surviving  wife  and  children, 
after  the  death  of  the  husband  and  father. 

Bichardson.  v.  Knox,135  decided  October  3, 1896,  is  a  suit  brought  in  the 
probate  court  by  the  guardian  of  the  estate  of  a  minor  against  a  former 
guardian  and  his  sureties  for  two  thousand  dollars  and  damages,  relying 
upon  the  articles  of  the  Eevised  Statutes  above  referred  to.  Suit  was  en- 
tertained and  judgment  rendered  for  the  plaintiff ;  appeal  was  taken  to  the 
district  court,  and  judgment  was  again  rendered  for  the  plaintiff.  Upon 
appeal  to  the  Court  of  Civil  Appeals,  the  whole  proceeding  was  adjudged 
void  for  lack  of  jurisdiction  in  the  probate  court. 

The  case  of  Albright  v.  Allday,130  decided  October  3,  1896,  was  a  suit 
in  the  district  court  against  an  administrator  to  establish  a  debt  and 
mortgage  against  the  estate,  which  had  been  presented  to  the  administra- 
tor and  rejected  by  him.  The  point  was  made  that  under  the  statute 
the  district  court  could  not  adjudge  the  mortgage  lien.  The  position  was 
overruled  by  the  Court  of  Civil  Appeals. 

In  Attridge  v.  Maxey,137  decided  December  19.  1896,  the  Court  of  Civil 
Appeals  held  that  the  creditor  of  an  heir  entitled  to  an  interest  in  an 
estate  being  administered  in  the  probate  court  could  not  institute  a  pro- 
ceeding in  the  probate  court  to  have  such  interest  subjected  to  the  payment 
of  his  debt. 

In  Miers  v.  Betterton,138  the  widow  of  an  intestate,  who  was  admin- 
istratrix of  his  estate,  refused  to  place  on  the  inventory  a  tract  of  land 

M  25  S.  W.,  458,  decided  February  21,  1894. 
134 19  Texas  Civ.  App.,  671,  32  S.  W.,  153. 
135  14  Texas  Civ.  App.,  402,  37  S.  W.,  189. 
133  37  S.  W.,  646. 

' 13T  15  Texas  Civ.  App.,  134,  39  S.  W.,  323. 
13S  45  S.  W.,  430. 


DISTRICT    COURT — DETAILED    CONSIDERATION.  143 

deeded  to  him  because  she  claimed  that  it  was  her  separate  property. 
Motion  was  made  in  the  county  court  to  compel  her  to  do  so.  She 
resisted  the  motion,  setting  up  her  title.  It  was  held  that  the  county 
court  had  no  jurisdiction  to  try  the  issue  thus  joined  and  that  the 
motion  should  have  been  dismissed,  and  the  parties  compelled  to  go  into 
the  district  court. 

Dodson  v.  Wortham,139  is  a  suit  brought  in  the  probate  court  by  one 
claiming  an  interest  in  an  estate,  which  had  been  paid  into  the  State 
Treasury  under  article  2202  of  the  Eevised  Statutes.  The  amount  was 
seventeen  hundred  and  eighty-one  dollars.  Question  was  raised  as  to 
the  jurisdiction  of  the  probate  court.  The  court  held  that  the  proceed- 
ing was  but  a  continuation  of  the  administration,  and  was  within  the 
jurisdiction  of  the  probate  court. 


Shall  Have  Appellate  Jurisdiction  and  General  Supervisory 
Control  Over  the  County  Commissioners  Court,  With  Such 
Exceptions  and  Under  Such  Regulations  as  May  be  Pre- 
scribed by  Law. 

This  was  added  in  the  amendments  of  1891.  There  has  been  no 
legislation  under  it.  In  the  general  road  law,  passed  February  5, 
1884,140  jurisdiction  of  appeals  in  cases  of  damages  for  opening  roads 
under  ordinary  conditions  is  given  to  the  county  court.  In  the  act 
passed  the  next  day,141  the  Legislature  provided  for  opening,  in  all 
counties  in  which  sufficient  road  facilities  did  not  exist,  roads  leading 
directly  to  the  county  seats  of  adjoining  counties;  and  in  these  cases  it 
gave  the  appellate  jurisdiction  to  the  district  courts. 

In  the  case  of  Taylor  v.  Travis  County,142  the  commissioners  court 
had  opened  a  road  across  the  lands  of  Taylor  under  the  general  statute 
of  February  5th.  Taylor  was  dissatisfied  with  the  amount  of  damages 
and  attempted  to  appeal  from  the  judgment.  He  took  an  appeal  to 
the  district  court,  from  which  it  was  dismissed  for  want  of  jurisdiction. 
Appeal  was  taken  from  this  judgment  and  it  was  affirmed  by  the 
Supreme  Court.  In  the  opinion,  the  court  distinguishes  between  these 
statutes  and  holds  that  the  proceeding  in  that  case  was  under  the  first, 
and  hence  by  statute  should  have  gone  to  the  county  court.  The  point 
as  to  the  validity  of  the  provision  of  the  Act  of  February  6th,  providing 
for  appeals  in  the  special  cases  coming  within  it  to  the  district  court, 
was  not  passed  on.  These  statutes  have  not  been  changed  by  the  Legis- 
lature, and  the  Court  of  Civil  Appeals,  in  the  case  of  Bell  v.  Palo  Pinto 

138  45  S.  W.,  858. 

140  Acts  1884,  p.  20. 

•"Acts  1884,  p.  63. 

JT!  77  Texas,  333,  14  S.  W.,  137. 


144  CIVIL    JURISDICTION   OF   DISTRICT   AND   COUNTY   COURTS. 

County,143  decided  that  the  amendments  of  1891  did  not  repeal  the  Act 
of  February  5th,  as  to  appeals  to  the  county  court  in  ordinary  road  cases, 
but  that  such  appeals  must  still  be  taken  to  that  court. 


General  Original  Jurisdiction  Over  All  Causes  of  Action  What- 
soever for  Which  a  Remedy  or  Jurisdiction  is  Not  Provided 
by  Law  or  This  Constitution. 

This  is  a  new  provision  of  extreme  importance.  As  has  been  already 
stated,  from  the  decision  in  Titus  v.  Latimer,144  until  the  adoption  of 
these  amendments,  the  Legislature  of  the  State  had  been  hampered  by 
the  doctrine  that  every  court  created  by  the  Constitution  was  a  court  of 
limited  and  enumerated  powers;  and  the  strict  enforcement  of  this 
doctrine  led  to  serious  practical  embarrassments.  This  clause  re- 
moves this  difficulty,  and  now  if  any  legal  right  is  violated,  the  injured 
party,  unless  the  right  to  try  his  case  has  been  affirmatively  given  to 
some  other  court,  can  resort  to  the  district  court.  This  difference  has 
been  recognized  by  the  courts  in  numerous  cases.145 


COUNTY  COURTS-DETAILED  CONSIDERATION. 

Many  of  the  authorities  already  cited  and  discussed  relate  quite  as 
directly  to  the  jurisdiction  of  the  county  as  of  the  district  court. 
Reference  will  be  made  to  them  again  only  when  it  may  seem  to  be  neces- 
sary. There  are  some  further  matters,  however,  proper  to  be  con- 
sidered here. 


Jurisdiction  of  the  County  Court  Dependent  on  the  Amount  in 
Controversy. 

There  are  many  cases  in  which  jurisdiction  is  fixed  only  by  the  amount 
in  controversy,  without  reference  to  the  nature  of  the  suit  or  its  subject 
matter.  This  jurisdiction  is  of  two  kinds :  first,  exclusive,  which  exists 
in  all  cases  in  which  the  subject  matter  involved  does  not  of  itself 
give  jurisdiction  to  the  district  court  and  in  which  the  amount  in  con- 

143  29  S.  W.,  929,  1895. 

144  5  Texas,  433,   1849. 

145  Kaufman  County  v.  McGaughey,  3  Texas  Civ.  App.,  655 ;  Gamel  v.  Smith,  3 
Texas  Civ.  App.,  22,  21  S.  W.,  628;  Kountze  v.  Cargill,  22  S.  W.,  227,  in  Court 
of  Chi!  Appeals:  same  case  in  Supreme  Court,  revising  Court  of  Appeals'  judg- 
ment, 86  Texas,  386,  22  S.  W.,  1015. 


COUNTY    COURTS DETAILED    CONSIDERATION.  145 

troversy  exceeds  two  hundred  dollars  and  does  not  exceed  five  hundred 
dollars,  exclusive  of  interest  and  costs;  second,  concurrent  with  the 
district  courts,  which  exists  in  all  civil  cases  in  which  the  amount  in 
controversy  exceeds  five  hundred  dollars  and  does  not  exceed  one  thou- 
sand dollars,  exclusive  of  interest  and  costs,  exclusive  jurisdiction  over 
which  has  not  been  expressly  given  to  some  other  court. 

Where  the  amount  is  just  two  hundred  dollars  or  less,  the  jurisdic- 
tion is  exclusive  in  the  justice  court.  Where  it  is  just  five  hundred 
dollars  is  exclusive  in  the  county  court.146 

It  is  settled  that  the  clauses  now  under  discussion  give  jurisdiction 
only  in  those  cases  in  which  it  is  dependent  solely  upon  the  amount  in 
controversy. 

The  cases  giving  rules  applicable  in  estimating  the  amount  in  con- 
troversy have  been  given  under  "District  Court." 

The  county  court  may  enter  final  judgment  on  all  bail  bonds  forfeited 
by  it  in  criminal  cases  pending  before  it,  whatever  the  amount.148 

Article  1157,  given  above,149  denies  to  the  county  court  jurisdiction  of 
certain  cases  in  which  the  Constitution  gives  jurisdiction  to  the  district 
court,  and  only  makes  clear  the  legislative  intent  that  the  cases  specified 
should  be  exclusively  in  the  jurisdiction  of  the  district  court.  The  cor- 
responding clauses  of  the  district  court  article  have  been  separately 
considered,  and  the  numerous  cases  bearing  thereon  cited  and  com- 
mented upon. 


Appellate  Jurisdiction  of  the  County  Court. 

The  county  courts  have  appellate  jurisdiction  in  civil  cases  over  which 
justice  courts  have  original  jurisdiction,  when  the  judgment  appealed 
from  or  the  amount  in  controversy  exceeds  twenty  dollars,  exclusive  of 
costs.150  The  Constitution  gives  the  right  of  appeal  only  when  the 
judgment  shall  exceed  twenty  dollars;  the  statutes  add  the  words  "the 
amount  in  controversy."  The  change  is  a  very  material  one ;  but,  under 
the  extensive  power  over  county  courts  conferred  by  the  Constitution, 
is  doubtless  valid.  The  judgment  of  the  county  courts  in  all  cases  ap- 
pealed to  them  is  final,  unless  the  amount  in  controversy  or  the  judg- 

110  Railway  Co.  v.  Rambolt,  67  Texas,  654,  4  S.  W.,  356 ;  Garrison  v.  Express  Co., 
69  Texas,  345,  6  S.  W.,  842;  Carrol  v.  Silk,  70  Texas,  23,  11  S.  W.,  116. 

148  Rev.  Stats.,  art.  1156. 

149  Ante,  p.  100. 

150  Rev.  Stats.  1895,  art.  1158. 

10 — Pleading 


146  JOINDER   AND   MISJOINDER   OF    CAUSES    OF   ACTION. 

ment  rendered  shall  exceed  one  hundred  dollars  exclusive  of  interest 
and  costs.151 

The  county  court  also  has  jurisdiction  over  cases  brought  from  the 
justice  court  by  certiorari.  In  all  cases  coming  to  the  county  court 
from  the  justice  court,  whether  by  appeal  or  certiorari,  the  trial  in  the 
county  court  is  de  novo,  and  not  upon  the  record  of  the  former  trial. 
All  pleadings  must  be  presented  and  witnesses  examined,  and  other 
testimony  may  be  introduced,  as  though  no  trial  had  been  had  in  the 
justice  court.152 

The  jurisdiction  of  the  court  and  the  authority  of  county  judges  to 
grant  writs  has  been  sufficiently  considered  in  connection  with  the  district 
courts. 

Appellate  jurisdiction  from  county  commissioners  courts  in  assess- 
ment of  damages  in  laying  out  county  roads  under  Act  of  February  5, 
1884,  is  conferred  upon  the  county  court.  This  jurisdiction  has  been 
sustained  by  the  Supreme  Court.158 

In  many  counties  in  the  State  the  civil  jurisdiction  of  the  county 
courts  has  been  transferred  to  the  district  court.154 

County  courts  also  have  original  jurisdiction  of  proceedings  in  exer- 
cise of  the  right  of  eminent  domain  to  condemn  property  for  the  use  of 
railroad  companies.  The  statutes  on  the  subject  are  quite  extensive, 
giving  very  explicit  directions  for  the  manner  of  exercising  this 
power.155 


TIME  AND  PLACE. 

A  court  can  not  exercise  its  jurisdiction  at  a  time  or  place  not  speci- 
fied by  law.156 


151  Rev.  Stats.  1895,  art.  996,  sec.  3;  Cox  v.  Wright,  27  S.  W.,  294;  Tufts  v. 
Hodges,  8  Texas  Civ.  App.,  240,  28  S.  W.,  110;  Bohannon  v.  Roensch,  13  Texas 
Civ.  App.,  218,  35  S.  W.,  874;  Emerson  v.  Emerson,  35  S.  W.,  425;  Cadwallader  v. 
Lovece,  10  Texas  Civ.  App.,  1,  29  S.  W.,  667;  Crosby  v.  Crosby,  92  Texas,  441, 
49  S.  W.,  359. 

"-Constitution,  art  V,  sec.  16.  For  statutory  provisions  regarding  appeals, 
see  Rev.  Stats.  1895,  title  33,  chap.  17,  and  Certiorari,  title  15,  chap.  2. 

153  Rev.  Stats.  1895,  4693,  et  seq. ;  Taylor  v.  Travis  County,  77  Texas,  333,  14  S. 
W.,  137 ;  Bell  v.  Palo  Pinto  County,  29  S.  W.,  929. 

154Batts!  Stats.,  p.  578,  et  seq. 
13i  Rev.  Stats.  1895,  chap.  8. 

166  Doss  v.  Waggener,  3  Texas,  515;  Whitener  v.  Belknap,  89  Texas,  273,  34  S. 
W.,  594;  Wilson  v.  State,  35  S.  W.,  390;  Williams  v.  Reutzel,  29  S.  W.,  374. 


BULBS  IN  DIFFERENT  SYSTEMS.  147 


CHAPTEK  VII. 

JOINDER  AND  MISJOINDER  OF  CAUSES  OF  ACTION,  AND 
CONSOLIDATION  OF  SUITS. 

RULES  IN  DIFFERENT  SYSTEMS. 

Different  systems  of  jurisprudence  differ  materially  with  reference 
to  the  proper  joinder  of  causes  of  action.  The  rules  governing  the 
practice  are  founded  almost  entirely  upon  considerations  of  public 
policy,  and  are  to  a  large  extent  arbitrary.  Under  the  common  law, 
with  its  separate  courts  of  law  and  of  equity,  different  rules  obtained  in 
these  respective  courts,  the  rules  in  common  law  courts  against  com- 
bining different  causes  of  action  in  the  same  suit  being  strict,  while 
in  equity  they  were  more  liberal.  The  civil  law  was,  in  this  respect, 
even  more  liberal  than  equity.  The  Texas  practice  is  very  largely  de- 
rived from  the  equity  and  civil  law  procedure,  and  greater  latitude  is 
allowed  here  than  under  any  one  of  the  systems  mentioned. 


MULTIPLICITY  OF  SUITS  TO  BE  AVOIDED. 

The  primary  rule  on  this  subject  is  the  same  in  every  system  of  pro- 
cedure, viz.,  that  the  law  abhors  a  multiplicity  of  suits.  Hence,  when 
litigation  is  begun  between  two  parties,  it  should  be  as  comprehensive 
as  is  practicable,  and  should  include  as  many  of  the  differences  existing 
between  them  as  may  be  litigated  together  with  due  regard  to  orderly 
procedure  and  the  rights  of  others.  This  rule  has  peculiar  signi- 
ficance and  force  in  our  system,  where  every  suit  is  an  action  on  the 
case  and  the  parties  are  entirely  free  from  limitations  growing  out  of 
forms  of  action. 

This  may  be  well  illustrated  by  a  few  Texas  cases. 

In  Chevalier  v.  Rusk,1  the  plaintiff  had  placed  two  executions  and  one 
citation  in  the  hands  of  the  defendant  as  sheriff.  The  latter  had  declined 
to  serve  either  process.  The  plaintiff  sued  for  all  the  breaches  of  duty  in 
one  suit.  The  defendant  demurred  to  the  petition  on  the  ground  of  mis- 
joinder  of  causes  of  action.  The  court  discussed  the  question,  citing 
numerous  authorities,  and  held  that  there  was  no  mis  joinder,  using  the 
following  language :  "Civil  law  authorities  have  kept  in  view  the 

1  Dallam,  613,  1844. 


148  JOINDER   AND   MISJOINDEE   OF    CAUSES   OF   ACTION. 

same  principle  here  decided,  and  the  general  rule  laid  down  by  them 
is,  that  all  demands,  not  inconsistent  with  each  other,  must  be  joined 
in  one  action.  Both  systems  equally  agree  in  condemning  a  multi- 
plicity of  suits  and  an  accumulation  of  costs. 

"Under  our  statutes  intended  to  simplify  the  rules  of  pleading, 
no  distinctions  as  to  forms  of  action  are  recognized,  and  a  great  latitude, 
not  tending  to  manifest  confusion,  may  be  allowed  in  the  joinder 
of  actions. 

"This  court  has  already  decided  in  Binge  and  Blair  v.  Smith  (post, 
616),  that  where  the  plaintiff  has  two  caiises  of  action  which  may 
be  joined  in  one,  he  ought  so  to  proceed,  and  if  he  sever  he  should  be 
compelled  to  consolidate.  This  decision  concurs  with  the  general 
rule  laid  down  by  the  common  law  authorities,  which  is  stated  to  be, 
'that  when  the  same  plea  may  be  pleaded,  and  the  same  judgment 
given  on  all  the  demands,  or  when  the  same  judgment  is  to  be  given 
though  the  pleas  be  different,,  they  may  be  joined.' ': 

In  Morris  v.  McKinney,2  suit  was  brought  by  the  plaintiff,  who 
claimed  a  large  tract  of  land  against  two  defendants  who  severally 
claimed  separate  portions  of  the  tract.  Objection  was  made  as  to  the 
improper  joinder  of  causes  of  action  and  of  defendants.  The  objection 
was  overruled,  the  court  saying : 

"We  will  direct  our  attention  to  the  two  latter  grounds  of  demurrer 
alone,  they  having  been  the  only  points  relied  upon  by  counsel  for  a 
reversal  or  affirmance  of  the  judgment  below.  And  these  two  are  so 
closely  allied  that  the  decision  of  one  almost  by  necessity  involves  that 
of  the  other.  On  the  subject  of  multifariousness,  we  can  only  arrive 
at  correct  conclusions  by  applying  the  general  principles,  established  by 
various  authorities,  to  the  particular  case  under  consideration,  and  de- 
termining therefrom  whether  there  is  such  a  mis  joinder  in  parties  either 
as  to  interest  or  person  as  would  warrant  the  court  in  sustaining  an 
exception  on  that  ground.  In  2  Maddock,  page  294,  it  is  laid  down  'that 
the  courts  will  not  permit  a  plaintiff  to  demand  by  one  bill  several 
matters  of  different  natures  against  several  defendants ;  and  the 
reason  given  for  this  rule  is  the  plain  and  obvious  one,  that  thereby  costs 
might  unjustly  and  erroneously  accumulate  against  a  party  by  the  delay 
incident  to  the  adjudication  of  the  rights  of  a  codefendant,  with  whom 
he  was  in  no  way  interested. 

"In  Comyn's  Digest,  7,  Chancery,  p.  2,  the  principle  is  expressed, 
that  all  interested  in  the  'demand  ought  to  be  parties  in  equity  and  in 
examining  the  various  expressions  of  various  judges  and  authors  on 
this  subject,  we  might  probably  arrive  at  the  general  principle,  as  laid 
down  by  Calvert  on  Parties  (p.  6,  chap.  1,  sec.  1),  'that  all  interested 
in  the  object  of  the  suit  should  be  parties.'  In  the  case  of  the  Mayor 

2Dallam,  621,  1844. 


MULTIPLICITY   OF    SUITS   TO    BE   AVOIDED.  149 

of  York  v.  Pilington,  a  general  right  of  fishing  was  established  against 
many  persons,  unconnected  and  claiming  several  and  distinct  rights 
therein,  on  the  principle  'that  there  was  one  common  interest  in  all  the 
parties  defendant,  centering  in  the  point  in  issue.'  Apply  these  prin- 
ciples to  the  case  under  consideration.  The  'object'  of  the  suit  is 
to  establish  the  plaintiff's  right  to  an  entire  tract  of  land,  part  of 
which  'entirely'  are  claimed  by  defendants.  The  point  in  issue  is  the 
correctness  of  the  plaintiff's  claim;  and  a  common  interest  on  the  part 
of  the  defendants  centers  in  that  point.  The  decree  of  the  court  es- 
tablishing that  right  for  the  plaintiff  could  be  given  without  embar- 
rassment or  difficulty,  and  multiplicity  of  actions,  which  is  abhorrent  to 
the  principles  of  equity,  avoided.  We  can  therefore  have  but  little 
difficulty  in  arriving  at  the  conclusion  that  the  parties  are  properly 
joined,  and  that  the  judge  below  erred  in  sustaining  the  demurrer." 

In  Clegg  v.  Varnell,3  in  discussing  the  question  of  multifariousness, 
the  court  says :  "Two  executions,  on  distinct  judgments,  recovered 
by  distinct  plaintiffs  against  the  husband,  were  levied  on  the  property 
of  the  wife,  and  the  question  is,  must  she  institute  a  separate  suit  for 
injunction  against  each  plaintiff  in  the  executions,  or  may  she  join 
them  as  defendants,  and  thus  in  a  single  suit  settle  the  question  as  to 
her  right  in  the  property? 

"Judge  Story,  in  his  treatise  on  Equity  Pleadings,  defines  multi- 
fariousness to  be  the  improperly  joining  in  one  bill  distinct  and  inde- 
pendent matters  against  one  defendant,  or  the  demand  of  several  matters 
of  a  distinct  and  independent  nature  against  several  defendants.  In  the 
latter  case,  the  proceeding  would  be  oppressive,  because  it  tends  to  load 
each  defendant  with  an  unnecessary  burden  of  costs,  by  swelling  the  plead- 
ings with  the  statement  of  the  several  claims  of  the  other  defendants, 
with  which  he  has  no  connection.  In  the  former  case,  the  defendant 
would  be  compellable  to  unite  in  his  defense  different  matters  wholly 
unconnected  with  each  other,  and  great  delays  occasioned  by  waiting 
for  the  proofs  respecting  one  of  the  matters,  when  the  others  might 
be  ripe  for  a  hearing.  Sec.  271. 

"As  an  example  of  multifariousness.  it  is  said  that  if  an  estate  be 
sold  in  lots  to  different  persons,  the  purchasers  could  not  join  in  a 
bill  against  the  vendor;  for  each  party's  case  would  be  distinct,  de- 
pending on  its  own  peculiar  circumstances;  for  the  same  reason  the 
vendor  would  not  be  allowed  to  sue  in  one  bill  all  the  purchasers,  for 
specific  performance.  Id.,  sec.  272.  On  the  other  hand,  it  is  said  that 
a  bill  will  not  be  multifarious  because  it  joins  two  good  causes  of  com- 
plaint, growing  out  of  the  same  transaction,  where  all  the  defendants 
are  interested  in  the  same  claim  oi;  right,  and  where  the  relief  asked 
for  in  relation  to  each  is  of  the  same  general  character.  Id.,  sec.  284. 

3  18  Texas,  302,  1857. 


150        JOINDER  AND  MIS  JOINDER  OF  CAUSES  OF  ACTION. 

In  section  533  it  is  stated  as  the  result  of  the  authorities,  that  where 
there  is  a  common  interest  and  a  common  liability  in  the  defendants, 
and  a  common  interest  in  the  plaintiffs,  different  claims  to  property  (if 
the  subjects  are  such  as  may  without  inconvenience  be  joined)  may 
be  united  in  one  suit.  Thus  a  bill  is  not  necessarily  multifarious  by 
reason  of  its  seeking  to  redeem  two  distinct  mortgages  of  different 
pieces  of  real  estate;  or  of  its  seeking  specific  performance  of  different 
contracts  relating  to  different  parcels  of  real  estate.  12  Mete.,  323. 

"A  bill  has  been  sustained  by  the  owner  of  a  sole  fishery,  against 
several  persons  who  claimed  under  distinct  rights,  and  also  by  seventy- 
two  underwriters  to  sustain  several  actions  upon  different  policies  of 
insurance  effected  by  the  defendants  upon  different  ships.  3  Price,  164. 
The  latter  case  may  perhaps  be  subject  to  some  question.  In  Gaines 
and  Wife  v.  Chew  et  al.,  2  Howard,  619,  it  was  held  that  a  bill  filed 
against  the  executors  of  an  estate  and  those  who  purchased  from  them, 
is  not  upon  that  account  alone  multifarious.  In  the  opinion,  the  court 
said  that  a  bill  might  have  been  filed  against  each  of  the  defendants, 
but  the  question  is  whether  they  may  not  all  be  included  in  the  same 
bill.  The  complainant  claimed  as  devisee  or  as  heir  at  law  of  the  de- 
ceased, and  whether  she  claimed  as  one  or  the  other,  there  was  no  mis- 
joinder  of  claims.  The  defendants  claim  mediately  or  immediately 
under  the  will  of  1811,  although  their  purchases  were  made  at  differ- 
ent times  and  for  distinct  parcels  of  the  property.  They  have  a  com- 
mon source  of  title,  but  no  common  interest  in  the  purchases.  The 
facts  of  the  purchase,  including  notice,  may  be  peculiar  to  each  de- 
fendant, but  these  may  be  ascertained  without  inconvenience  and  ex- 
pense to  the  codefendants.  In  every  fact  that  goes  to  impair  or  es- 
tablish the  authority  of  the  executions,  all  of  the  defendants  are  inter- 
ested. In  its  present  form,  the  bill  avoids  multiplicity  of  suits,  with- 
out subjecting  the  defendants  to  inconvenience  or  unreasonable  ex- 
pense. 

"In  section  539  of  Equity  Pleadings,  by  Story,  the  author  states, 
as  a  conclusion  from  the  authorities,  that  there  is  not  any  positive  in- 
flexible rule  as  to  what  constihites  multifariousness,  such  as  will  be 
fatal  to  the  suit  on  demurrer.  The  courts  have  always  exercised  a 
sound  discretion  in  determining  whether  the  subject  matters  of  the 
suit  are  properly  joined  or  not.  Campbell  v.  Mackay,  1  Mylne  &  Craig, 
603;  Oliver  et  al.  v.  Piatt,  3  Howard,  U.  S.  Sep.,  411,  412. 

"The  substance  of  the  rules  on  this  subject  appears  to  be,  that  each 
case  must  be  governed  by  its  own  circumstances,  and  whether  it  be 
multifarious  or  not,  must  be  left,  in  a  great  measure,  to  the  sound  dis- 
cretion of  the  court. 

"The  defendants  ought  not  to  be  put  to  inconvenience  and  expense 
in  litigating  matters  in  which  they  have  no  interest;  and,  on  the  other 
hand,  unnecessary  litigation  and  multiplicity  of  suits  should  be  avoided. 


JOINDERS BREACH   OF   CONTRACT   AND   TORT.  151 

While  defendants  are  protected,  plaintiffs  must  not  be  put  to  the 
necessity  of  bringing  two  suits  instead  of  one.  3  Mylne  &  Craig,  85; 
7  Sim.,  241,  254. 

"The  rule  against  multiplicity  of  suits  has  peculiar  force  in  our 
system  of  procedure.  Within  reasonable  limits  it  is  the  cardinal  prin- 
ciple as  to  joinder  of  parties  and  causes  of  action.  Even  jurisdictions 
which  are  distinct  and  separate  in  other  States,  are  blended  in  our  sys- 
tem; and  legal  and  equitable  causes  of  action  and  grounds  of  defense 
may  be  adjusted  in  a  single  controversy. 

"In  the  case  before  us,  the  plaintiffs  in  the  executions,  who  are  made 
defendants  in  this  suit,  are  alike  interested  in  every  fact  which  may  go 
to  establish  or  defeat  the  right  of  the  wife,  as  against  the  husband,  to 
the  property.  Surely  a  claimant  attempting  to  restrain  the  sale  of  his 
property  under  execution  against  another  person,  is  not  to  be  compelled 
to  institute  suit  against  each  plaintiff  in  execution  where  there  is  but 
one  common  matter  in  dispute,  and  that  is  whether  the  property  be- 
longs to  the  claimant  or  to  the  defendant  in  the  executions.  To  state 
the  proposition  is  to  answer  it.1  The  fact  that  Feeny  is  absent  in  Cali- 
fornia, and  that  there  may  be  some  delay  before  he  could  be  cited  by 
publication,  is  no  such  unreasonable  inconvenience  to  Varnell  as  to  impose 
on  Mrs.  Clegg  the  necessity,  expense,  and  trouble  of  bringing  two  suits 
instead  of  one,  when  the  main  object  of  both  suits  would  be  an  inquiry 
as  to  her  right  in  the  property." 

This  general  rule  against  multiplicity  of  suits  is  not,  however,  to  be 
pressed  too  far,  either  in  its  application  in  cases  pending,  or  in  de- 
termining the  effect  of  judgments  rendered.  In  each  respect  it  is  the 
subject  of  limitations  as  well  established  and  as  beneficial  in  their 
effect  as  the  rule  itself. 


JOINDERS  OP  ACTION  FOR  BREACH  OF  CONTRACT   AND 
FOR  TORT. 

In  all  systems  the  distinction  between  suits  arising  ex  contractu  and 
those  arising  ex  delicto  is  recognized,  and  the  primary  and  most  im- 
portant rule  forbidding  the  joinder  of  actions  is  that  a  cause  af  action 
founded  upon  breach  of  contract  can  not  be  joined  with  one  arising 
from  a  tort,  except  in  those  instances  in  which  the  two  grow  directly 
out  of,  or  are  immediately  connected  with,  the  same  matter.4 

It  will  be  more  satisfactory  to  consider  these  two  classes  of  causes 
of  action  separately. 

4  Stewart  v.  Gordon,  65  Texas,  344;  Railway  Co.  v.  Shirley,  54  Texas,  148; 
Hooks  v.  Fitzenreiter,  76  Texas,  279,  13  S.  W.,  229;  Cf.  Chapter  on  Defendant's 
Answer. 


152  JOINDER   AND   MISJOINDER   OF    CAUSES    OP   ACTION. 


CONTRACTS— JOINDER  OF  CAUSES  OF  ACTION  ON. 

Whenever  two  or  more  causes  of  action  for  liquidated  amounts  pv 
exist  between  the  same  parties  in  the  same  capacities,  and  no  others 
are  interested,  whether  they  arise  from  breaches  of  different  contracts 
or  from  different  breaches  of  the  same  contract,  they  may  be  litigated 
in  one  suit.  If  all  such  causes  of  action  under  all  the  contracts  be 
in  one  of  the  parties,  he  may  join  them  all  in  his  suit  against  the  other. 
If  some  of  the  causes  of  action  be  in  one  party  and  some  in  the  other, 
each  may  by  appropriate  pleadings  present  his  rights.  The  court 
will  consider  them  all  and  will  render  judgment  in  favor  of  him  who 
is  entitled  to  a  balance  upon  a  comparison  of  claims. 

If,  however,  the  parties  to  the  several  contracts  out  of  which  the 
causes  of  action  arise  are  different,  or  if  the  party  or  parties  claiming 
the  rights  claim  in  different  capacities,  or  if  the  defendants  are  liable 
in  different  capacities,  it  is  a  rule  of  almost  universal  application  that 
the  causes  of  action  can  not  then  be  joined.5  In  a  few  exceptional  cases, 
however,  a  joinder  of  such  causes  of  action  is  not  only  permissable  but 
very  desirable.  In  Love  v.  Keowne,6  administrators  were  appointed  on 
an  estate,  gave  bond,  and  received  the  property.  After  they  had  con- 
ducted the  affairs  of  the  estate  for  awhile  the  probate  court  required 
the  administrators  to  give  a  new  bond,  relieving  the  first  sureties  from 
liability  for  any  wrongs  occurring  thereafter,  but  leaving  them  re- 
sponsible for  any  former  default.  The  administration  was  continued 
under  the  security  of  the  new  bond  for  some  time,  when  the  heirs 
claimed  that  there  was  a  large  deficit  in  the  property.  They  brought 
suit  against  the  administrators,  joining  both  sets  of  bondsmen,  because, 
as  they  alleged,  it  was  impossible  for  them,  the  heirs,  to  ascertain  and 
state  to  the  court  when  the  several  misapplications  of  the  property  took 
place,  or  how  much  of  the  default  occurred  while  the  first  bond,  and  how 
much  while  the  second,  was  in  force.  The  several  bondsmen  plead  in 
abatement  mis  joinder  of  causes  of  action  and  raised  same  points  by  ex- 
ception. 

The  district  court  sustained  the  plea  as  to  misjoinder  of  causes  of 
action  and  of  parties,  and  dismissed  the  suit.  The  Supreme  Court  re- 
versed the  judgment  on  this  point,  in  the  opinion  using  this  language: 
"The  jurisdiction  of  the  court  below  was  one  of  blended  law  and 
equity,  and  the  policy  of  our  law  has  ever  been  to  avoid  a  multiplicity 
of  suits.  If  separate  suits  had  been  brought  and  a  discovery  sought  in 

"'Thompson  v.  Bohannon,  38  Texas,  243;  Lyon  v.  McDonald,  78  Texas,  498,  14 
S.  W.,  261. 

6  58  Texas,  199,  1882. 


CONTRACTS JOINDER   OF    CAUSES   OF   ACTION    ON.  153 

each,  the  proceedings,  evidence,  and  judgment  in  the  one  would  not  have 
been  binding  upon  the  sureties  in  the  other,  and  between  the  two,  the 
plaintiffs  may  have  failed  to  have  obtained  the  relief,  if  any,  to  which 
they  may  be  entitled.  In  the  suit  as  brought,  all  the  parties  in  in- 
terest were  before  the  court.  The  general  subject  matter  and  object 
sought  were  the  same;  the  plaintiffs  claimed  relief  in  the  same  general 
right,  and  the  proceedings  and  decrees  could  have  been  adjusted  to  the 
respective  rights  and  interests  of  all  the  parties  to  the  suit,  and  would 
have  been  binding  upon  them. 

"It  has  been  found  impracticable  to  lay  down  any  positive  general 
rule  as  to  what  will  or  will  not  constitute  multifariousness,  but  the 
courts  have  wisely  left  the  question  as  one  of  convenience,  to  be 
decided  according  to  the  peculiar  circumstances  of  the  case.  As  said 
by  McLean,  J.,  in  Gaines  v.  Chew,  2  How.  (U.  S.),  619:  'Every  case 
must  be  governed  by  its  own  circumstances  and  as  they  are  as  diversified 
as  the  names  of  the  parties,  the  court  must  exercise  a  sound  discretion 
on  the  subject.'  It  is  said  in  the  notes  to  the  leading  case  of  Fellows 
v.  Fellows,  4  Cowen,  682,  in  15  American  Decisions,  428,  that  perhaps  the 
best  general  rule  that  can  be  laid  down  is  that  stated  by  Wilde,  J.,  in  Dim- 
mock  v.  Bixby  20  Pick.,  377,  that  the  objection  of  multifariousness  does 
jvi  hold  'where  one  general  right  is  claimed  by  the  plaintiffs,  although 
the  defendants  may  have  separate  and  distinct  rights.' 

"There  are  numerous  authorities  to  the  effect  that,  'to  render  a  bill 
multifarious,  it  must  contain  not  only  separate  and  distinct  matters, 
but  such  that  each  entitles  the  complainant  to  separate  equitable  relief. 
It  is  not  so  if  it  be  single  as  to  the  subject  matter  and  object  thereof, 
and  the  relief  sought,  if  all  the  defendants  are  connected,  though 
differently,  with  the  whole  subject  of  dispute.' '; 

Motion  for  rehearing  was  made  and  overruled,  the  court  saying; 

"The  main  grounds  relied  upon  for  a  rehearing  are  based  upon  a 
supposed  misjoinder  of  parties  and  causes  of  action. 

"The  breach  of  each  of  the  bonds  doubtless  constitutes  a  cause  of 
action  against  the  makers  of  the  several  bonds,  ordinarily  separate 
and  distinct;  but  the  relation  of  two  sets  of  sureties  may  be  such  to 
the  subject  matter  of  litigation,  which  in  this  case  is  the  estate,  that 
came  into  the  hands  of  the  administrators,  that  they  may  be  joined  in 
one  action,  and  in  which  it  may  become  eminently  proper  that  all  the 
sureties  should  be  joined,  not  only  for  the  protection  of  those  interested 
in  the  estate,  but  also  for  the  purpose  of  adjusting  the  equities  existing 
among  the  sureties  themselves. 

"In  a  court  of  equity  this  is  always  desirable,  in  order  to  do  com- 
plete justice  between  all  parties  without  a  multiplicity  of  suits. 

"The  demurrer  admits  the  devastavit;  that  by  reason  of  the  loss  of  the 
papers  of  the  estate  the  plaintiffs  are  unable  to  ascertain  with  accuracy 
the  extent  of  the  devastavit  prior  to  the  time  the  second  bond  was 


154  JOINDER   AND   MISJOINDER   OF    CAUSES   OF   ACTION. 

executed;  and  that  prior  to  the  execution  of  the  second  bond,  one  of 
the  administrators,  in  connection  with  those  persons  who  became 
sureties  upon  the  second  bond,  united  in  a  misapplication  of  a  part  of  the 
trust  estate,  and  that  thes<>  sureties,  for  their  own  indemnity,  received 
the  proceeds  of  such  misapplication  and  have  applied  the  same  to  their 
own  use. 

"This  state  of  facts  connects  the  last  sureties  with  the  subject  matter 
of  this  suit  at  a  time  prior  to  their  becoming  sureties  at  all;  and  also 
connects  them  after  they  became  sureties  with  a  trust  fund  which  not 
only  those  interested  in  the  estate  may  follow,  but  which  the  sureties 
upon  the  first  bond  may  follow  for  their  own  protection;  and  upon  the 
plainest  principles  of  equity  procedure,  it  would  seem  that  they  should 
all  be  joined,  to  enable  the  court  to  make  a  decree  that  would  be  just 
and  binding  upon  all."7 

This  question  is  again  considered  in  the  case  of  Williams  v.  Eobin- 
son.8  Adkison  was  administrator  on  estate  of  Kermin  and  gave  bond 
as  such.  He  was  also  engaged  in  mercantile  business  as  member  of  the 
firm  of  J.  S.  Williams  &  Co.  He  took  possession  of  the  assets  of  the 
estate.  He  died.  Eobinson  was  appointed  administrator  de  bonis  non 
of  Kermin's  estate.  He  claimed  that  Adkison  had  not  accounted  for 
the  property  in  his  hands  belonging  to  the  estate,  but  had  used  it  in 
carrying  on  his  partnership  business.  He  sued  the  sureties  of  Adkison 
on  his  bond  as  administrator  for  the  property  misused  by  him  and 
joined  the  members  of  the  firm  to  which  Adkison  had  belonged,  claim- 
ing from  them  the  value  of  the  property  used  by  the  partnership.  The 
defendants  plead  mis  joinder  of  causes  of  action.  The  plea  was  over- 
ruled by  the  district  court.  On  appeal  this  ruling  was  reversed  in  the 
following  language:  "The  exception  taken  by  defendants  for  mis- 
joinder  of  parties  ought  to  have  been  sustained;  the  plaintiff's  petition 
was  obnoxious  to  the  objection  that  it  was  multifarious  in  joining 
matter  of  a  distinct  and  independent  nature,  and  which  involved  wholly 
different  rules  as  to  the  measure  of  liability  against  several  defendants. 
The  sureties  of  Adkison  on  his  bond  as  administrator,  if  liable,  were 
so  in  consequence  of  a  maladministration  or  devastavit  by  their  prin- 
cipal; the  copartners  of  Adkison,  if  liable,  were  so  in  virtue  of  their 
partnership  relations  and  participation  with  their  partner,  Adkison, 
in  the  alleged  conversion  of  the  cotton. 

"There  existed  no  privity  of  relation  nor  community  of  action  be- 
tween these  sets  of  defendants  whereby  a  common  or  an  alternative 
liability  of  all  of  them  could  be  maintained.  The  right  of  recovery 
against  one  set  or  class,  under  the  allegations  made  in  the  petition, 

T  Love  v.  Keowne,  65  Texas,  152. 

8  Williams  v.  Robinson,  63  Texas,  76,  1885. 


CONTRACTS  —  JOINDER   OF    CAUSES   OF   ACTION    ON.  155 

would  preclude  a  recovery  against  the  other  class;  there  existed  no 
necessary  nor  approximate  relation  between  them,  nor  any  common 
principle  or  rule  of  liability  applicable  to  the  case  under  which  they 
all  alike  might  be  held  liable.  Under  the  exposition  of  the  rule  appli- 
cable to  the  subject  laid  down  in  Clegg  v.  Varnell,  18  Texas,  300,  we 
are  of  opinion  that  the  court  erred  in  overruling  the  exceptions.  See 
also  Frost  v.  Frost,  45  Texas,  340;  Love  v.  Keowne,  58  Texas,  191. 

"It  would  seem  that,  ordinarily,  if  a  plaintiff,  being  uncertain  as 
to  the  facts  on  which  his  case  rests,  or  as  to  which  of  various  persons, 
to  be  shown  by  the  proofs  to  be  made,  are  liable  to  his  cause  of  action, 
he  will  not  be  permitted  to  solve  the  doubt  by;  embracing  each  and  all 
of  them  as  defendants  in  his  suit  except  under  allegations  showing 
such  privity  between  them  in  respect  to  the  subject  of  litigation  as 
will  show  at  least  a  contingent  or  alternative  right  to  recover  against 
any  of  the  defendants  on  the  general  basis  he  has  laid  for  a  recovery 
against  the  others.  He  can  not  under  ordinary  circumstances  make  a 
hypothetical  case  in  his  petition  upon  a  given  state  of  facts  showing 
a  good  cause  of  action  against  one  defendant,  and  in  the  same  petition 
base  a  right  to  recover  on  a  different  cause  of  action  for  the  same 
matter  or  subject  of  suit  against  another  and  a  different  defendant. 
He  must  in  such  a  case  sue  them  separately,  if  he  sues  at  all,  and  he 
can  not  impose  on  either  the  delays,  inconveniences,  and  costs  which 
may  ensue  by  joining  them  in  the  same  suit." 

It  should  be  observed  that  this  was  an  effort  to  join  a  suit  on  con- 
tract against  the  bondsmen  with  a  suit  for  tort  against  the  partners, 
but  this  fact  is  not  noticed  in  the  opinion. 

In  Screwman  v.  Smith,9  Smith  had  been  treasurer  of  the  plaintiff  as- 
sociation for  two  terms,  having  different  bondsmen  for  the  different 
terms.  He  was  charged  with  misapplication  of  money  belonging  to 
the  association,  and  separate  suits  were  brought  for  different  sums 
against  him  and  his  two  sets  of  bondsmen  respectively.  The  associa- 
tion moved  for  a  consolidation  of  the  two  suits.  Neither  the  petitions 
filed  in  the  cases  nor  the  motion  to  consolidate  alleged  that  the  plaintiff 
did  not  know  and  was  not  able  to  ascertain  at  what  time  the  several 
alleged  defalcations  occurred.  The  Supreme  Court  held  that  the 
plaintiff  had  not  brought  itself  within  the  rule  authorizing  the  con- 
solidation of  suits,  and  intimated  that  legislation  upon  the  subject  was 
desirable.  This  is  still  the  rule  in  suits  on  bonds  and  other  con- 
tracts between  private  persons. 

Such  serious  difficulty,  however,  was  experienced  in  collecting  from 
defaulting  officers  with  several  sets  of  bondsmen,  that  on  April  13,  1897, 
the  Legislature  passed  an  act  regulating  the  practice  as  to  joinder  of 

9  Screwman  v.  Smith,  70  Texas,  171,  1888. 


156  JOINDER   AND   MISJOINDEE   OF    CAUSES   OF   ACTION. 

causes  of  action  and  of  parties  in  suits  by  the  State  or  any  county  on 
official  bonds  as  follows: 

"Art.  1205.  In  any  suit  brought  by  the  State  of  Texas,  or  any 
county  of  said  State,  against  any  officer  who  has  held  an  office  for 
more  than  one  term  and  has  given  more  than  one  official  bond,  the 
sureties  on  each  and  all  of  such  bonds  may  be  joined  as  defendants 
in  one  and  the  same  suit,  whenever  it  is  alleged  in  the  petition  that  it 
is  difficult  to  determine  when  the  default  sued  for  occurred  and  which 
set  of  sureties  of  such  official  bonds  is  liable  therefor. 

"Art.  1206.  In  any  suit  by  the  State  of  Texas  upon  the  official 
bond  of  any  State  officer,  any  subordinate  officer  who  has  given  bond, 
payable  either  to  the  State  or  to  such  superior  officer,  to  cover  the  de- 
fault sued  for,  or  any  part  thereof,  together  with  the  sureties  on  his 
official  bond,  may  be  joined  as  defendants  in  one  and  the  same  suit 
with  such  superior  officer  and  his  bondsmen,  whenever  it  is  alleged 
in  the  petition  that  both  of  such  officers  are  lable  for  the  money  sued 
for,  to  the  end  that  all  equities  may  be  adjusted  between  them  in  one 
suit. 

"Art  1207.  Whenever  any  official  bond  is  made  payable  to  the 
State  of  Texas,  or  any  officer  thereof,  and  a  recovery  thereon  is  au- 
thorized by  or  would  inure  to  the  benefit  of  parties  other  than  the 
State,  suit  may  be  instituted  on  such  bond  in  the  name  of  the  State 
alone  for  the  benefit  of  all  parties  entitled  to  recover  thereon." 


TORTS-JOINDER  OP  CAUSES  OF  ACTION  FOR. 

There  is  the  same  indefiniteness  in  regard  to  suits  on  torts  as  on 
contracts.  There  are  several  cases  which  hold  that  where  several  causes 
of  action  are  in  the  plaintiff  in  the  same  capacity  and  against  defendant 
in  same  capacity  he  may  join  all  in  the  same  suit.  In  Carter  v. 
Wallace,10  the  court  says :  "At  common  law  the  joinder  of  actions  often 
depends  on  the  form  and  not  the  right  of  action.  Thus,  trespass  can 
not  be  joined  with  trover,  not  because  the  rights  asserted  in  these  actions 
are  inconsistent,  but  because,  as  it  is  said,  the  joinder  depends  on  the 
form  of  action  and  the  judgments  are  different;  that  in  trespass  being 
strictly  quod  capiaiur,  and  that  in  trover  quod  sit  in  misericordia  (1 
Term,  277;  16  J.  E.,  146)  ;  and  the  objection  could  be  taken  advantage 
of  by  writ  of  error. 

"Here  no  such  distinctions  exist;  and  no  reason  is  perceived  why 
distinct  injuries,  occasioned  by  a  trespass  upon  lands,  and  a  tortious 
conversion  of  personal  property  may  not  be  joined  in  the  same  action, 
since  the  forms  of  action  of  the  common  law  -are  not  recognized  in  our 

10  2  Texas,  208,  1847. 


TORTS JOINDER   OF    CAUSES   OF   ACTION    ON.  157 

courts,  but  every  right  of  action  may  be  asserted  upon  its  own  peculiar 
facts  and  circumstances,  without  regard  to  form.  All  our  actions 
are  in  the  strictest  sense,  though  not  in  a  technical  sense,  special 
actions  on  the  case,  being  what  the  actions  framed  under  the  statute 
of  Westminster  2d  have  been  described,  actions  'whereby  the  suitor  has 
ready  relief,  according  to  the  exigency  of  his  business,  and  adapted 
to  the  specialty,  reason,  and  equity  of  every  case.'  3  Com.,  51.  It  may 
be  truly  said  here,  with  a  slight  variation  of  the  language  of  Lord 
Hardwicke,  1  East,  226,  that  wherever  the  common  or  our  statute  law 
recognizes  or  creates  a  legal  right,  for  a  violation  of  that  right  the 
injured  party  may  bring  a  special  action  on  his  own  case,  by  a  petition 
framed  according  to  the  peculiar  circumstances  of  his  own  particu- 
lar -grievance.  In  our  petition  the  technical  distinctions  and  artificial 
boundaries  of  the  common  law  actions  constitute  no  element  and  have 
no  place;  but  its  only  requisites  are,  that  it  shall  disclose  a  right,  an 
injury,  and  a  remedy,  the  facts  which  constitute  the  plaintiff's  right, 
the  injury  committed  by  the  defendants,  and  a  specification  of  the 
relief  sought.  It  is  subject  to  no  such  test  as,  Does  it  pursue  the  form 
of  trespass,  or  trover,  or  any  one  of  the  common  law  actions,  but  the 
inquiry  is,  Does  it  disclose  any  valid,  substantial  cause  of  action  ?" 

Dobbin  v.  Bryan11  was  a  suit  against  an  administrator  and  three 
others  to  enforce  against  the  former  an  obligation  of  the  deceased, 
alleging  that  the  administrator  and  the  other  defendants  had  conspired 
to  defraud  the  estate  by  fraudulently  bidding  in  its  property  below  its 
value,  etc.  Objection  of  mis  joinder  of  causes  of  action  and  parties  was 
urged.  The  court  says :  "There  has  been  another  ground  presented 
by  the  counsel  for  the  plaintiff  in  error  on  which  he  supposes  the 
demurrer  ought  to  have  been  sustained  in  the  court  below.  He  says 
the  petition  is  multifarious.  This  is  an  objection  that  I  have  thought 
can  seldom  be  sustained,  and  entitled  to  no  liberality  of  construction 
in  its  favor.  It  savors  so  much  of  the  technicality  of  a  common  law 
court  that  it  must  have  found  its  standing  in  chancery  practice  as  an 
interloper  from  the  common  law  practice.  If  the  petition  confines 
itself  to  the  adjustment  of  all  the  equities  arising  between  the  parties, 
however  various  those  equities  may  be  in  their  origin,  I  know  of  no 
sound  principle  governing  the  exercise  of  chancery  jurisdiction  that 
would  restrain  the  court  from  disposing  of  all  such  matters  without 
driving  the  party  to  another  and  distinct  suit.  If,  however,  there 
were  matters  contained  in  the  petition  foreign  to  the  relief  sought, 
it  could  not  be  reached  by  a  general  demurrer.  Such  matters  should 
be  specially  pointed  out,  and  if  the  objections  were  well  taken,  could 
be  stricken  out  without  destroying  the  matter  that  was  well  presented. 

11  5  Texas,  283. 


158  JOINDER   AND   MISJOINDER   OF    CAUSES   OF   ACTION. 

In  no  aspect,  however,  can  the  petition  in  this  case  be  considered 
obnoxious  to  the  objection  raised  by  the  counsel  for  the  plaintiff  in 
error." 

Since  the  case  of  Morris  v.  McKinney,12  it  has  been  uniformly 
held  that  where  one  person  owns  real  estate  and  many  persons  severally 
take  possession  of  different  parts  of  it,  he  may  sue  each  separately  or 
all,  or  any  number  less  than  all,  in  one  action. 

There  are  a  great  many  other  decisions  in  our  reports  on  this  sub- 
ject, but  there  is  no  course  of  adjudication  in  which  the  courts  have 
more  persistently  adhered,  to  the  policy  of  refusing  to  announce  or 
hold  to  rule  than  in  this,  and  it  is  impossible  to  formulate  any  clear 
and  practicable  statement  which  can  be  taken  as  a  test  to  be  applied 
in  all  cases.  The  matter  is  one  largely  in  the  discretion  of  the  court 
upon  all  the  facts  and  circumstances  of  each  case  as  it  arises. 


EFFECT  OF  MISJOINDER. 

When  causes  of  action  are  improperly  joined,  the  defendant  should 
plead  the  defect  in  abatement,  presenting  the  point  by  exception  where 
the  facts  appear  of  record,  and  by  verified  plea  setting  out  the  facts  when 
they  do  not;  and  the  court  should  require  the  plaintiff  to  elect  which 
of  the  causes  of  action  he  will  retain  and  to  dismiss  the  other  without 
prejudice.  If  the  court  has  jurisdiction  of  the  case  after  such  dis- 
missal, it  should  proceed  to  hear  it.  The  costs  occasioned  by  the  mis- 
joinder  should  always  be  taxed  against  the  plaintiff.  If  the  plaintiff 
is  of  the  opinion  that  the  court  is  wrong  in  its  ruling  requiring  him 
to  elect  between  causes  of  action  set  out,  he  should  except  to  the  ruling 
and  reserve  the  point  for  decision  in  the  appellate  court.  If  the  plaintiff 
declines  to  elect,  the  court  should  strike  out  so  much  of  the  petition 
as  in  its  judgment  would  cure  the  objection  and  proceed  with  the  re- 
mainder, or,  if  it  had  no  jurisdiction  of  the  remainder,  dismiss  the 
whole  case.  In  either  case  the  plaintiff  could  save  the  point  by  ex- 
ception. 

Statutory  provisions  with  reference  to  joinder  of  causes  of  action  in 
this  State  are  very  few;  but  there  are  several  regarding  joinder  of 
parties,  one  of  which  has  been  already  quoted;13  others  will  be  noticed 
under  "Parties." 

"Dallam,  611,  1844. 
13  Infra,  Chapter  VIII. 


CONSOLIDATION   OF    SUITS.  159 


CONSOLIDATION  OP  SUITS. 

In  the  general  practice  act  passed  on  the  13th  of  May,  1846,  by  the 
first  Legislature,  there  was  a  section  with  reference  to  the  consolidation 
of  suits  which  has  been  continued  through  all  the  practice  acts  to  the 
present  time  and  is  still  in  force.14  Its  terms  are  as  follows:  "Where 
any  plaintiff  shall  bring  in  the  same  court  several  suits  against  the 
same  defendant  for  causes  of  action  which  should  have  been  joined, 
he  shall  recover  the  costs  of  one  action  only,  and  the  costs  of  the  other 
actions  shall  be  adjudged  against  him  unless  sufficient  reasons  appear 
to  the  court  for  instituting  several  actions."  It  will  be  observed  that 
no  rule  is  given  for  determining  when  causes  of  action  should  be 
joined,  and  even  if  the  several  suits  embrace  such  causes  of  action 
as  should  have  been  brought  in  one,  still  the  matter  is  addressed  to 
the  discretion  of  the  court  as  to  whether  the  causes  shall  be  consoli- 
dated and  the  costs  adjudged  against  the  plaintiff.  Some  of  the  most 
important  cases  construing  this  statute  are  cited  in  the  notes  below.15 

This  subject  is  necessarily  closely  connected  with  questions  arising 
as  to  the  joinder,  nonjoinder,  and  misjoinder  of  parties,  and  many  of 
the  rules  announced  and  reasons  given  in  the  chapter  on  those  sub- 
jects are  applicable  here. 

"Rev.  Stats.  1895,  art.  1431. 

1J  Paul  v.  Langdon,  60  Texas,  555 ;  Young  v.  Gray,  65  Texas,  59 ;  Mills  v.  Paul, 
30  S.  W.,  242;  Raymond  v.  Cook,  31  Texas,  373;  Screwman's  Ben.  Assn.  v. 
Smith,  70  Texas,  168,  7  S.  W.,  793;  Texas  Mex.  Ry.  Co.  v.  Cahill,  23  S.  W., 
232;  Johnson  v.  Luling  Mfg.  Co.,  24  S.  W.,  996;  Davis  v.  Delias  Natl.  Bank, 
7  Texas  Civ.  App.,  41,  26  S.  W.,  242;  Dreben  v.  Russeau,  26  S.  W.,  867;  Green 
v.  Banks.  24  Texas,  508;  Spencer  v.  James,  21  S.  W.,  540. 


160  PARTIES   TO   ACTIONS WHO    MAY   SUE   AND  BE   SUED. 

CHAPTER  VIII. 

PAETIES  TO  ACTIONS— WHO  MAY  SUE  AND  WHO  BE  SUED. 
PERSONS  REPRESENTING  THE  SOVEREIGN. 

The  law  recognizes  a  difference  between  persons  acting  in  their  pri- 
vate capacity  and  those  acting  for  or  representing  the  sovereign.  There 
are  two  kinds  of  the  latter  class, — first,  artificial  persons,  and  second, 
natural  persons  acting  in  an  official  capacity.  Considering  these  in 
their  order,  we  find  that  in  our  State  government  the  artificial  persons 
representing  sovereignty  are  the  State  taken  in  its  aggregate  and  cor- 
porate capacity,  counties,  cities,  and  towns. 

The  State  as  a  Party  Plaintiff. 

The  State  as  a  party  plaintiff  has  the  same  rights  that  any  private 
person  has,  and  may  bring  and  maintain  suits  in  the  courts,  and  may  en- 
force its  rights  against  persons  violating  them  in  the  same  way,  and  to 
the  same  extent,  that  individuals  may.  This  is  the  substance  of  the 
decisions  as  they  are  usually  expressed.1 

In  some  respects,  however,  the  privileges  of  the  State  as  a  plaintiff 
are  greater  than  those  of  an  individual,  as  it  is  not  required  to  comply 
with  equitable  rules  as  to  tender  or  payment  in  order  to  rescind  a  con- 
tract for  fraud.2 

. 

State  as  Defendant. 

When,  on  the  other  hand,  the  question  to  be  determined  is  the  State's 
liability  to  be  sued,  very  different  principles  are  applied  from  those 
which,  under  the  same  circumstances,  govern  in  suits  against  indi- 
viduals. It  is  an  invariable  rule  that  the  sovereign  can  not  be  sued 
without  its  own  consent.  It  is  conclusively  presumed  that  the  State 
will  respect  the  rights  of  individuals  and  redress  all  grievances  that  it 

1  State  v.  Kroner,  2  Texas,  492 ;   State  v.  Delesdenier,  7   Texas,  95 ;   State  v. 
Purcell,   16  Texas,  309;   State  v.  Thompson,  64  Texas,  692;   State  v.  Loan  and 
Trust  Co.,  81  Texas,  530,  17  S.  W.,  60. 

2  State  v.  Snyder,  66  Texas,  698,  18  S.  W.,  106. 


PEESONS   REPRESENTING   THE    SOVEREIGN.  161 

may  inflect  upon  them.  If  the  existence  of  such  grievance  is  shown 
to  the  satisfaction  of  the  Legislature,  that  body  will  usually  furnish 
appropriate  direct  redress;  if,  however,  the  validity  of  the  claim  is  not 
fully  proved,  the  usual  method  is  to  accord  the  claimant  'the  privilege 
of  suing  the  State  in  the  proper  court  and  establishing  his  rights  by  a 
judgment.  In  such  cases  the  court  exercises  only  the  functions  of  hear- 
ing and  adjudging;  it  has  no  power  to  execute  or  enforce  its  judgments, 
but  the  justice  and  propriety  of  the  claim  being  thus  established  the 
State  will  pay  it  through  its  proper  officers.3 

This  immunity  from  suit  goes  so  far  as  to  prevent  cross-actions 
against  the  State,  in  suits  brought  in  its  behalf,  either  under  general 
authority  or  by  special  law;  and,  as  above  seen,  it  also  relieves  the  State 
from  the  necessity  of  making  tender  or  payment  in  suits  to  rescind  con- 
tracts, and  in  other  actions  in  which  under  general  equity  rules  a  private 
individual  would  be  required  to  do  so.4 


Counties. 

The  county  may  always  sue  as  plaintiff  when  its  rights  are  invaded. 
As  the  county  is  a  minor  political  subdivision  of  the  State,  it  does  not 
enjoy  so  great  immunity  from  suit  as  the  State  itself.  It  may  always 
be  sued  for  the  breach  of  a  contract  which  it  was  authorized  to  enter 
into.  The  only  requirement  in  such  cases,  in  addition  to  those  with 
reference  to  suits  against  private  persons,  is  that  the  claim  must  be  pre- 
sented to  the  county  commissioners  court  and  a  demand  for  payment 
made  before  the  suit  can  be  brought.5  There  are  very  few  torts  for 
which  a  county  is  responsible,  but  in  all  instances  in  which  liability 
exists,  suit  may  be  brought  against  the  county.  If  the  claim  is  for 
damages,  it  should  be  first  presented  to  the  commissioners  court.  If 
it  is  not  for  money,  the  necessity  for  presentation  seems  to  be  open. 
Claims  against  a  portion  of  an  old  county  which  has  been  cut  off  from 
it  and  made  part  of  a  new  county,  for  its  share  of  the  old  indebtedness 
of  the  parent  county,  need  not  be  presented  to  the  commissioners  court 
of  the  new  county  before  suit  against  the  latter  may  be  brought.6 


3  Board  of  Land  Coras,  v.  Walling,  Dallam,  524 ;  League  v.  De  Young,  2  Texas, 
500;  Marshall  v.  Clarke,  22  Texas,  32;  Rose  v.  Governor,  24  Texas,  504;  Texas 
Mex.  Cent.  Ry.  v.  Jarvis,  80  Texas,  463,  15  S..  W.,  1089. 

*  Snyder  v.  State,  supra. 

&Rev.  Stats.  1895,  art.  790;  Hohman  v.  Comal  Co.,  34  Texas,  38;  Leach  v. 
Wilson  Co.,  62  Texas,  331;  Norwood  v.  Gonzales  Co.,  79  Texas,  222,  14  S.  W., 
1057. 

"Mills  Co.  v.  Lampasas  Co.,  90  Texas,  603,  40  S.  W.,  403;  Presidio  Co.  v.  Jeff 
Davis  Co.,  35  S.  W.,  177,  13  Texas  Civ.  App.,  115. 

11 — Pleadings. 


162  PARTIES   TO    ACTIONS  —  WHO   MAY   SUE   AND   BE    SUED. 

Cities  and  Towns. 

There  are  no  restrictions  on  the  rights  of  cities  and  towns  to  sue; 
and,  on  the  other  hand,  in  all  cases  in  which  the  law  recognizes  liability 
upon  them,  they  may  be  sued  just  as  private  persons,  without  presentation 
of  the  claim  or  any  preliminary  steps  toward  adjustment. 

In  Whose  Name  Suit  Must  be  Brought. 

A  state,  county,  and  city  should  each  sue  and  be  sued  in  its  proper 
name.  It  is  also  proper  and  usual,  for  convenience  in  conducting  the 
litigation,  to  give  the  name  of  one  of  the  officers  upon  whom  citation 
and  notice  may  be  served.7 

The  above  is  the  general  rule,  but  if  the  suit  is  on  an  obligation  made 
for  the  benefit  of  the  county  or  city  but  payable  in  terms  to  some  one 
else  named  therein,  the  suit  may  be  brought  in  his  name  for  the  use  of 
the  county  or  city,  as  the  case  may  be.  In  such  cases  the  better  practice 
is  to  sue  in  the  name  of  the  county  or  city,  setting  up  the  facts  showing 
it  to  be  the  real  party  in  interest.  In  cases  of  suit  not  on  a  written 
obligation  naming  the  plaintiff  as  obligee,  a  suit  brought  in  the  name 
of  one  of  the  officers  of  the  county  or  city  would  be  abated  on  proper 
plea,  but  the  defect  can  not  be  noticed  otherwise.8 

The  Federal  Goverment  Party. 

The  Federal  government  of  the  United  States  is  sovereign  within  its 
sphere  of  action,  and  can  not  be  sued  except  by  its  own  consent.  Congress, 
however,  has  been  very  liberal  in  this  regard  and  has  passed  many  laws 
authorizing  different  kinds  of  suits  against  the  government  to  be 
brought  in  various  Federal  courts;  but,  as  none  of  these  acts  give  juris- 
diction to  State  courts,  they  do  not  give  any  right  to  sue  the  Federal 
government  in  nor  affect  its  status  before  such  tribunals,  and  hence 
have  no  direct  connection  with  our  present  topic. 

Natural  Persons  Representing  the  Sovereign. 

Besides  the  several  legal  entities  just  enumerated,  there  are  numerous 
natural  persons  who  act  for  the  sovereign  and  whose  conduct  in  such  rep- 

7  Rev.  Stats.,  arts.  1196,  1220-1221. 

"Smith  v.  Moseley,  74  Texas,  631,  12  S.  W.,  748;  Smith  v.  Wingate,  61 
Texas,  54. 


PERSONS   REPRESENTING   THE    SOVEREIGN.  163 

i 

resentative  capacity  may  have  very  great  effect  upon  the  rights  and  inter- 
ests of  individuals.  It  is  often  difficult  to  distinguish  between  the  conduct 
of  such  persons  in  which  they  really  represent  and  stand  for  the  public, 
and  acts  done  under  authority  assumed  by  them,  but  not  covered  by 
their  commissions.  So  long  as  an  officer  acts  strictly  within  the  scope 
of  his  legitimate  powers,  neither  he  nor  the  government  is  subject  to 
suit  for  his  conduct.  If,  however,  an  act  be  clearly  beyond  his  lawful 
authority,  he  is  liable.  This  is  true  whether  the  act  done  is  unlawful 
because  the  government  had  no  power  to  order  it  done,  or  whether  the 
act  is  itself  within  the  authority  of  the  government  but  is  unlawful  in 
the  officer  because  the  government  had  not  authorized  him  to  perform 
it,  or  whether  the  act  is  unlawful  because  the  officer,  in  attempting  to 
perform  an  act  authorized  and  legal  in  itself,  mistakes  the  person  or 
thing  upon  which  he  should  act.  In  any  case,  if  the  act  is  entirely 
beyond  the  officer's  authority,  it  will  render  him  liable  to  any  one 
directly  injured  by  it. 

One  of  the  most  interesting  cases  asserting  liability  of  officers  for  acts 
done  beyond  the  power  of  the  government  is  The  United  States  v. 
Lee.9  There  had  been  an  effort  made  to  sell  the  lands  in  controversy 
under  a  tax  sale  and  the  United  States  government  had  bought  the  prop- 
erty. Possession  had  been  taken  and  by  authority  of  the  President  the 
premises  were  being  held  and  applied  to  a  public  purpose.  No  com- 
pensation had  been  made  to  the  owner.  .  The  opinion  of  the  court  is  too 
long  to  be  quoted  in  full.  That  portion  of  it  asserting  the  right  of  the 
individual  to  sue  the  representative,  or  supposed  representative,  of  the 
government  for  his  wrongful  act,  done  under  the  semblance  of  authority 
but  without  real  sanction  of  the  law,  is  as  follows :  "The  objection  is  also 
inconsistent  with  the  principle  involved  in  the  two  last  clauses  of  article 
5  of  the  amendments  to  the  Constitution  of  the  United  States,  whose 
language  is:  'That  no  person  *  *  *  shall  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law,  nor  shall  private  prop- 
erty be  taken  for  public  use  without  just  compensation.' 

"Conceding  that  the  property  in  controversy  in  this  case  is  devoted 
to  a  proper  public  use,  and  that  this  has  been  done  by  those  having  au- 
thority to  establish  a  cemetery  and  a  fort,  the  verdict  of  the  jury  finds 
that  it  is  and  was  the  private  property  of  the  plaintiff,  and  was  taken 
without  any  process  of  law  and  without  any  compensation.  Undoubted- 
ly these  provisions  of  the  Constitution  'are  of  that  character  which  it  is 
intended  the  courts  shall  enforce,  when  cases  involving  their  operation 
and  effect  are  brought  before  them.  The  instances  in  which  the  life 
and  liberty  of  the  citizen  have  been  protected  by  the  judicial  writ  of 
habeas  corpus  are  too  familiar  to  need  citation,  and  many  of  these  cases, 

•106  U.  S.,  196. 


164  PARTIES   TO   ACTIONS WHO   MAY    SUE   AND   BE    SUED. 

indeed  almost  all  of  them,  are  those  in  which  the  life  or  liberty  was 
invaded  by  persons  assuming  to  act  under  the  authority  of  the  govern- 
ment. Ex  Parte  Milligan,  4  Wall.,  2. 

"If  this  constitutional  provision  is  a  sufficient  authority  for  the  court 
to  interfere  to  rescue  a  prisoner  from  the  hands  of  those  holding  him 
under  the  asserted  authority  of  the  government,  what  reason  is  there 
that  the  same  courts  shall  not  give  remedy  to  the  citizen  whose  property 
has  been  seized  without  due  process  of  law,  and  devoted  to  public  use 
without  just  compensation? 

"Looking  at  the  question  upon  principle,  and  apart  from  the  au- 
thority of  adjudged  cases,  we  think  it  still  clearer  that  this  branch  of 
the  defense  can  not  be  maintained.  It  seems  to  be  opposed  to  all  the 
principles  upon  which  the  rights  of  the  citizen,  when  brought  into  colli- 
sion with  the  acts  of  the  government,  must  be  determined.  In  such 
cases  there  is  no  safety  for  the  citizen,  except  in  the  protection  of  the 
judicial  tribunals,  for  rights  which  have  been  invaded  by  the  officers  of 
the  government,  professing  to  act  in  its  name.  There  remains  to  him 
but  the  alternative  of  resistance,  which  may  amount  to  crime.  The 
position  assumed  here  is  that,  however  clear  his  rights,  no  remedy  can 
be  afforded  to  him  when  it  is  seen  that  his  opponent  is  an  officer  of  the 
United  States,  claiming  to  act  under  its  authority;  for,  as  Mr.  Chief 
Justice  Marshall  says,  to  examine  whether  his  authority  is  rightfully 
assumed  is  the  exercise  of  jurisdiction,  and  must  lead  to  the  decision  of 
the  merits  of  the  question.  The  objection  of  the  plaintiffs  in  error 
necessarily  forbids  any  inquiry  into  the  truth  of  the  assumption  that 
the  parties  setting  up  such  authority  are  lawfully  possessed  of  it;  for 
the  argument  is  that  the  formal  suggestion  of  the  existence  of  such  au- 
thority forbids  any  inquiry  into  the  truth  of  the  suggestion. 

"But  why  should  not  the  truth  of  the  suggestion  and  the  lawfulness 
of  the  authority  be  made  the  subject  of  judicial  investigation? 

"In  the  case  supposed,  the  court  has  before  it  a  plaintiff  capable  of 
suing,  a  defendant  who  has  no  personal  exemption  from  suit,  and  a 
cause  of  action  cognizable  in  the  court, — a  case  within  the  meaning  of 
that  term,  as  employed  in  the  Constitution  and  defined  by  the  decisions 
of  this  court.  It  is  to  be  presumed  in  favor  of  the  jurisdiction  of  the 
court  that  the  plaintiff  may  be  able  to  prove  the  right  which  he  asserts 
in  his  declaration. 

"What  is  that  right  as  established  by  the  verdict  of  the  jury  in  this 
case  ?  It  is  the  right  to  the  possession  of  the  homestead  of  plaintiff.  A 
right  to  recover  that  which  has  been  taken  from  him  by  force  and  violence 
and  detained  by  the  strong  hand.  This  right  being  clearly  established, 
we  are  told  that  the  court  can  proceed  no  further,  because  it  appears  that 
certain  military  officers,  acting  under  the  orders  of  the  President,  have 
seized  this  estate,  and  converted  one  part  of  it  into  a  military  fort  and 
another  into  a  cemetery. 


PERSONS   REPRESENTING   THE    SOVEREIGN.  165 

"It  is  not  pretended,  as  the  case  now  stands,  that  the  President  had 
any  lawful  authority  to  do  this,  or  that  the  legislative  body  could  give 
him  any  such  authority  except  upon  payment  of  just  compensation. 
The  defense  stands  here  solely  upon  the  immunity  from  judicial  inquiry 
of  every  one  who  asserts  authority  from  the  executive  branch  of  the 
government,  however  clear  it  may  be  made  that  the  executive  possessed 
no  such  power.  Nat  only  no  such  power  is  given,  but  it  is  absolutely 
prohibited,  both  to  the  executive  and  the  legislative,  to  deprive  anyone 
of  life,  liberty  or  property  without  due  process  of  law,  or  to  take  private 
property  without  just  compensation.  . 

"These  provisions  for  the  security  of  the  rights  of  the  citizen  stand 
in  the  Constitution  in  the  same  connection  and  upon  the  same  ground 
as  they  regard  his  liberty  and  his  property.  It  can  not  be  denied  that 
both  were  intended  to  be  enforced  by  the  judiciary  as  one  of  the  de- 
partments of  the  government  established  by  that  Constitution.  As  we 
have  already  said,  the  writ  of  habeas  corpus  has  been  often  used  to 
defend  the  liberty  of  the  citizen,  and  even  his  life,  against  the  assertion 
of  unlawful  authority  on  the  part  of  the  executive  and  the  legislative 
branches  of  the  government.  See  Ex  Parte  Milligan,  4  Wall.,  2;  Kil- 
bourn  v.  Thompson,  103  U.  S.,  168. 

"No  man  in  this  country  is  so  high  that  he  is  above  the  law.  No 
officer  of  the  law  may  set  that  law  at  defiance  with  impunity.  All  the 
officers  of  the  government,  from  the  highest  to  the  lowest,  are  creatures 
of  the  law,  and  are  bound  to  obey  it. 

"It  is  the  only  supreme  power  in  our  system  of  government,  and  every 
man  who  by  accepting  office  participates  in1  its  functions  is  only  the 
more  strongly  bound  to  submit  to  that  supremacy,  and  to  observe  the 
limitations  which  it  imposes  upon  the  exercise  of  the  authority  which 
it  gives. 

"Courts  of  justice  are  established,  not  only  to  decide  upon  the  con- 
troverted rights  of  the  citizens  as  against  each  other,  but  also  upon  the 
rights  in  controversy  between  them  and  the  government ;  and  the  docket 
of  this  court  is  crowded  with  controversies  of  the  latter  class. 

"Shall  it  be  said,  in  the  face  of  all  this,  and  of  the  acknowledged 
right  of  the  judiciary  to  decide  in  proper  cases  statutes,  which  have 
been  passed  by  both  branches  of  Congress  and  approved  by  the  Pres- 
ident, to  be  unconstitutional,  that  the  courts  can  not  give  a  remedy 
when  the  citizen  has  been  deprived  of  his  property  by  force,  his  estate 
seized  and  converted  to  the  use  of  the  government  without  lawful 
authority,  without  process  of  law,  and  without  compensation,  because 
the  President  has  ordered  it  and  his  officers  are  in  possession? 

"If  such  be  the  law  of  this  country,  it  sanctions  a  tyranny  which  has 
no  existence  in  the  monarchies  of  Europe,  nor  in  any  other  government 
which  has  a  just  claim  to  well-regulated  liberty  and  the  protection  of 
personal  rights. 


166  PARTIES    TO    ACTIONS  —  WHO    MAY    SUE   AND   BE    SUED. 

"It  can  not  be  then,  that  when,  in  a  suit  between  two  citizens  for 
the  ownership  of  real  estate,  one  of  them  has  established  his  right  to 
the  possession  of  the  property  according  to  all  the  forms  of  judicial 
procedure,  and  by  the  verdict  of  a  jury  and  the  judgment  of  the  court, 
the  wrongful  possessor  can  say  successfully  to  the  court,  'Stop  here;  I 
hold  by  order  of  the  President,'  and  the  progress  of  justice  must  be 
stayed.  That,  though  the  nature  of  the  controversy  is  one  peculiarly 
appropriate  to  the  judicial  function,  though  the  United  States  is  no 
party  to  the  suit,  though  one  of  the  three  great  branches  of  the  gov- 
ernment to  which  by  the  Constitution  this  duty  has  been  assigned  has 
declared  its  judgment  after  a  fair  trial,  the  unsuccessful  party  can  in- 
terpose an  absolute  veto  upon  that  judgment,  by  the  production  of  an 
order  of  the  secretary  of  war,  which  that  officer  had  no  more  authority 
to  make  than  the  humblest  private  citizen." 

This  case  has  been  followed  by  the  Supreme  Court  of  Texas  in  the 
case  of  Stanley  v.  Schwalby,10  and  though  this  case  was  reversed  by 
the  Supreme  Court  of  the  United  States  upon  other  grounds,  this  point 
was  sustained.  We  may  therefore  regard  it  as  established,  that  if  the 
government  itself  has,  under  the  Constitution,  no  power  to  do  the  act 
in  question,  it  could  not  authorize  an  individual  to  perform  it.  It  is 
immaterial  who  attempts  to  confer  the  supposed  authority,  or  how 
regularly  he  may  have  acted  in  attempting  to  do  so.  The  government 
can  not  give  that  which  it  does  not  have.  In  such  case  the  individual 
may  always  be  sued,  for  he  is  not,  in  legal  contemplation  at  least,  the 
representative  of  the  sovereign. 

An  illustration  of  an  attempt  to  exercise  power  of  such  a  nature  as 
might  be  delegated  by  the  government,  by  one  to  whom  no  such  delega- 
tion has  been  made,  is  found  in  the  case  of  an  officer  making  an  arrest 
upon  a  forged  warrant.  The  government  has  the  power  to  issue  a 
warrant  of  arrest  in  a  proper  case,  but  in  the  case  supposed  has  not 
exercised  it.  but  some  one,  fraudulently  assumes  to  act  in  the  name  of 
the  government  and  prepares  a  paper  having  the  exact  appearance  and 
semblance  of  a  warrant.  It  comes  to  the  officer  to  whom  it  is  directed, 
and  he  in  good  faith  believes  it  to  be  genuine.  If  he  arrests  the  party, 
he  is  subject  to  suit — his  good  faith  being  no  protection  against  liability 
for  actual  damage. 

Illustrations  of  the  improper  exercise  of  authority  lawfully  conferred 
are  found  in  those  cases  in  which  an  officer  has  genuine  process  authoriz- 
ing the  arrest  of  one  person,  and  acting  thereon  he  arrests  another. 
Here  the  authority  to  arrest  the  party  indicated  in  the  warrant  is  real, 
but  the  officer  misunderstands  his  authority,  and  attempts  to  exercise  it 
by  arresting  the  wrong  individual.  He  is  liable. 

10  85  Texas,  349,  19  S.  W.,  264. 


OFFICERS   IN   DIFFERENT   DEPARTMENTS   OF    GOVERNMENT.  167 


OFFICERS   IN    DIFFERENT   DEPARTMENTS  OF   GOVERN- 
MENT. 

There  is  no  difference  between  the  different  departments  of  govern- 
ment as  to  immunity  for  acts  done  in  the  proper  exercise  of  legitimate 
authority. 

There  is,  however,  material  difference  between  them  as  regards  lia/- 
bility  for  damages  for  acts  done  under  the  guise  of  official  authority 
but  not  in  fact  properly  covered  thereby.  These  differences  are  depen- 
dent mainly  on  the  differences  in  the  nature  of  duties  of  the  officers  of 
the  several  departments;  some  of  them  being  ministerial  merely, 
others  involving  official  discretion.  Care  must  be  taken  to  distinguish 
between  these.  The  difference  does  not,  as  is  often  said,  consist  merely 
in  the  fact  that  one  requires  discretion  and  the  other  does  not,  for  often 
acts  purely  ministerial  require  the  exercise  of  judgment  by  the  officer, 
but  the  difference  lies  in  the  personal  character  of  the  discretion  to  be 
exercised  in  the  one  case  and  its  official  character  in  the  other.  To 
illustrate:  a  sheriff  is  a  ministerial  officer,  a  writ  of  execution  is  placed 
in  his  hands,  and  he  is  thereby  required  to  levy  upon  any  property  be- 
longing to  the  defendant  in  the  writ,  which  may  be  subject  to  execution. 
Certain  property  is  pointed  out  to  him  as  meeting  these  conditions.  He 
must  of  necessity  exercise  his  judgment  and  discretion  in  determining 
these  questions.  He  may  investigate  the  matter,  talk  to  persons  who 
claim  to  know  the  facts,  and  at  length  conclude  that  the  property  be- 
longs to  the  defendant,  and  make  the  levy.  Here  as  a  necessary  pre- 
liminary to  the  discharge  of  his  official  duty,  he  has  passed  on  the  ques- 
tions of  ownership  and  exemption,  but  he  did  so  for  his  own  guidance 
and  not  as  an  agent  of  the  government  authorized  to  bind  other  parties 
by  the  conclusion  at  which  he  arrived.  A  third  party  claims  the  prop- 
erty and  gives  the  bond  required  by  statute  and  the  trial  of  the  right 
of  property  comes  on  before  the  proper  court.  Here  the  identical  ques- 
tions as  to  ownership  that  arose  in  the  mind  of  the  sheriff  when  he 
made  the  levy  and  were  investigated  by  him  are  to  be  considered. 
But  in  this  instance  the  officer  by  whom  they  are  to  be  heard  and  de- 
termined is  the  agent  of  the  government  for  settling  the  dispute  and 
binding  the  parties.  The  judgment  and  discretion  exercised  by  the 
sheriff  was  personal  and  not  official,  and  his  action  ministerial;  the 
judgment  and  discretion  exercised  by  the  judge  is  official  and  repre- 
sentative, and  his  act  is  not  ministerial. 

If  the  act  is  ministerial,  that  is  involves  no  discretion  in  a.  representa- 
tive capacity  the  almost  universal  rule  is  that  the  officer  is  subject  to 
control  in  the  performance  of  the  act  and  is  liable  for  damages  for  its 
nonperformance  or  for  mistakes  committed  in  the  effort  to  perform. 


168  PARTIES   TO    ACTIONS  —  WHO    MAY    SUE   AND   BE    SUED. 

If  the  act  involves  official  discretion,  the  general  rule  is  that  the  officer 
is  immune  both  from  control  in  the  doing  of  the  act  and  from  liability 
for  the  manner- of  its  doing;  he  may,  however,  be  compelled  to  act  in 
some  way  in  the  matter. 

As  almost  all  official  acts  of  legislative  and  judicial  officers  involve 
official  discretion,  they  are  rarely  held  responsible;  as  most  of  the  acts 
of  executive  officers  are  ministerial  merely,  these  officers  are  usually 
liable  for  improper  discharge  of  their  duties. 

It  will  be  convenient  to  consider  the  question  as  to  the  different 
classes  of  officers  separately. 


Legislative  Officers. 

The  almost  invariable  rule  is  that  legislative  officers  are  free  from 
control  in  the  discharge  of  their  duties  while  such  duties  are  being 
performed,  and  are  not  liable  for  damages  resulting  therefrom.  In  a 
few  extreme  cases  the, courts  look  upon  some  particular  duty  devolving 
on  a  member  of  the  legislative  department  as  purely  ministerial  and 
undertake  to  compel  performance,  but  such  cases  are  rare  and  of  very 
doubtful  propriety.11 


Executive  Officers. 

The  Governor  of  the  State  is  exempt  from  suit  on  account  of  any 
official  act  performed  by  him.12 

The  heads  of  departments  are  exempt  from  control  by  mandamus 
except  from  the  Supreme  Court.13 

All  these  officers,  however,  except  the  Governor  are  subject  to  injunc- 
tion to  prevent  their  doing  unlawful  and  injurious  acts  under  the  claim 
of  official  authority.14 

Subordinate  executive  officers  are  always  subject  to  the  control  in  the 
discharge  of  purely  ministerial  duties,  and  are  also  responsible  for  dam- 
ages resulting  from  unlawful  acts  done  under  color  of  authority.15 

11  State  v.  Bolte,  52  S.  W.,  262,  and  cases  cited  in  the  opinion. 

12  Rev.  Stats.  1895,  art.  946. 

"Rev.  Stats.  1895,  arts.  946  and  4861. 

"Kaufman  Co.  v.  McGaughey,  3  Texas  Civ.  App.,  669,  21  S.  W.,  261. 

15  Arberry  v.  Beavers,  6  Texas,  457 ;  Teat  v.  McGaughey,  85  Texas,  485,  22  S.  W., 
302;  Winder  v.  Williams,  23  Texas,  G01;  Railway  Co.  v.  Locke,  63  Texas,  623; 
Fuller  v.  Sparks,  39  Texas,  137;  Schmick  v.  Noel,  72  Texas,  3,  8  S.  W.,  83; 
Mechem  on  Public  Officers,  chap.  6. 


OFFICERS   IN   DIFFERENT   DEPARTMENTS   OF   GOVERNMENT.  169 

Judicial  Officers. 

The  line  between  liability  and  non-liability  of  judicial  officers  for 
damages  for  acts  done  by  them  in  the  assumed  exercise  of  official  functions 
not  in  fact  pertaining  to  them  is  not  clearly  drawn.  If  the  court 
really  has  jurisdiction  of  the  matter,  it  is  universally  agreed  that  no 
liability  attaches  to  the  judge,  however  erroneous,  or  even  malicious, 
his  conduct  may  be.16  On  the  other  hand,  if  the  matter  is  such  as  ad- 
mits no  doubt  of  its  being  entirely  beyond  the  jurisdiction  of  the  court, 
he  would  be  responsible  for  injuries  resulting  from  his  action,  just  as 
if  he  had  not  attempted  to  clothe  it  with  official  authority.17  These 
extreme  cases  are  clear,  but  those  lying  between  them,  in  which  there 
is  doubt  regarding  the  question  of  jurisdiction,  present  many  diffi- 
culties. The  authorities  on  the  point  are  not  harmonious  and  it  is 
difficult  to  arrive  at  any  rule  which  will  satisfy  them  all.  The  cor- 
rect dictrine  seems  to  be,  that  if  the  question  of  jurisdiction  is  such 
that  a  reasonable  man,  fairly  well  qualified  to  hold  the  office  the 
powers  of  which  are  under  consideration,  might  in  good  faith  con- 
clude that  the  jurisdiction  existed,  then  no  liability  attaches,  even 
though  in  the  particular  case  the  officer  may  have  acted  improperly 
and  from  evil  motives.  But  if  the  question  is  such  that  a  person  so 
qualified  would  not  conclude  in  favor  of  the  jurisdiction  (even  though 
it  could  not  be  said  to  be  quite  free  from  doubt),  then  the  officer*  is 
protected  only  in  case  he  erred  honestly  and  with  good  motive.  In  such 
cases  his  motives  will  always  be  presumed  to  be  good,  and  to  fix  lia- 
bility the  person  injured  must  offer  satisfactory  proof  of  evil  inten- 
tion— or  of  gross  carelessness  equivalent  to  evil  intention. 

There  are  some  acts  devolving  on  judicial  officers  which  are  practi- 
cally ministerial.  The  performance  of  these  can  be  compelled  by 
mandamus. 17& 

In  cases  involving  judicial  discretion,  but  in  which  the  duty  to  pro- 
ceed with  the  matter  is  plain  and  imperative,  a  judicial  officer  can  be 
compelled  to  go  on  in  the  discharge  of  the  duty,  but  the  manner  of  its 
discharge  must  be  left  to  him.18 

"Raines  v.  Simpson,  50  Texas,  497;  Anderson  v.  Roberts,  35  S.  W.,  416; 
Bradley  v.  Fisher,  13  Wall.,  335;  Cooley  on  Torts,  2  ed.,  477. 

11  McVea  v.  Walker,  11  Texas  Civ.  App.,  46,  31  S.  W.,  839. 

17aEwing  v.  Cohen,  63  Texas,  483;  Caldwell  v.  Harbart,  08  Texas,  322,  4  S. 
W.,  607;  Brown  v.  Ruse,  69  Texas,  589,  7  S.  W.,  489;  Osborne  v.  Prather,  83 
Texas,  211,  18  S.  W.,  613;  Yeiser  v.  Burdett,  10  Texas  Civ.  App.,  155,  29  S.  W., 
912;  Schintz  v.  Morris,  13  Texas  Civ.  App.,  580,  35  S.  W.,  516,  and  36  S.  W., 
292. 

"Land  Commissioner  v.  Bell,  Dall.,  366;  Lloyd  v.  Brinck,  35  Texas,  9;  Arberry 
v.  Beavers,  6  Texas,  464;  Callaghan  v.  Salliw'ay,  5  Texas  Civ.  App.,  239,  23  S. 
W.,  837. 


170  PARTIES    TO    ACTIONS WHO   MAY    SUE   AND   BE    SUED. 


PERSONS  IN  THEIR  PRIVATE  CAPACITIES. 

By  far  the  larger  number  of  legal  relations  and  obligations  exist 
between  persons  in  their  private  capacities,  and  consequently  much  the 
larger  share  of  litigation  is  between  private  persons.  We  find  here  also 
the  two  classes  of  natural  and  artificial  persons,  and  while  the  rules  re- 
garding them  are  generally  the  same,  there  are  a  few  important  differ- 
ences relating  principally  to  questions  of  citizenship  and  rights  guar- 
anteed under  the  Federal  Constitution.  These  will  be  considered  as  we 
proceed  with  the  discussion  of  the  several  classes  of  persons  who  may 
be  parties  to  suits. 

It  will  be  convenient  to  make  several  different  classifications  of 
these  persons  in  order  to  understand  all  the  legal  rules  involved.  The 
first  of  these  will  be  based  on  political  allegiance  or  citizenship.  On 
this  basis  they  are  divided  into  citizens  of  the  State  of  Texas,  citizens 
of  other  States,  alien  friends,  and  alien  enemies.  Each  of  these  must 
then  be  again  divided  into  residents  of  the  State  and  nonresidents, 
but  these  will  be  considered  in  making  each  of  the  above  classes 
without  any  more  general  subdivisions  of  the  subject. 


Citizens  of  Texas. 

As  the  primary  object  of  government  is  to  protect  the  rights  of  its 
citizens,  and  as  the  courts  are  the  instrumentalities  through  which 
this  protection  is  afforded,  it  follows  that  each  and  every  citizen  of 
the  State  in  which  the  court  is  held  is  entitled  to  sue  as  a  party 
plaintiff,  and  is  subject  to  be  sued  as  a  party  defendant,  unless  there 
exists  some  special  circumstances  constituting  an  exception.  It  is  not 
ordinarily  incumbent  upon  the  plaintiff  to  allege  facts  constituting 
capacity  in  himself  or  the  defendant,  but  exceptional  circumstances 
constituting  incapacity  on  the  part  of  either  must  be  called  to  the  court's 
attention  by  the  party  seeking  advantage  therefrom,  or  they  can  not 
be  considered.  What  circumstances  constitute  these  several  incapac- 
ities, and  the  consequences  of  each,  are  considered  hereafter  under 
their  appropriate  heads. 


Citizens  of  Other  States. 

The  Constitution  of  the  United  States  guarantees  to  the  citizens 
of  each  State  the  enjoyment  of  the  same  rights  and  privileges  in  every 
other  State  of  the  United  States  as  are  enjoyed  in  such  State  by  its  own 


PERSONS   IN   THEIR   PRIVATE    CAPACITIES.  171 

citizens.19  It  must  be  observed  that  this  is  a  guarantee  of  privilege  and 
not  a  subjection  to  control;  it  gives  to  the  citizens  of  every  State  in  the 
Union  the  same  right  to  become  parties  plaintiff  in  the  courts  of  each 
State  that  the  citizens  of  that  State  have,  but  it  does  not  subject  them 
personally  to  the  jurisdiction  of  these  courts  as  defendants.  This  con- 
stitutional provision  does  not,  however,  secure  to  the  citizens  of  other 
States  any  greater  privileges  in  a  State  than  its  own  citizens  enjoy; 
and  therefore  no  State  can  be  compelled  to  create  tribunals  to  litigate 
the  rights  of  citizens  of  other  States.  When,  however,  it  does  pro- 
vide a  tribunal  to  litigate  in  behalf  of  its  own  citizens,  such  tribunals 
must  be  open  to  the  citizens  of  the  other  States  of  the  Union  for  the 
same  purposes,  to  the  same  extent,  and  upon  substantially  the  same 
conditions  that  they  are  open  to  the  citizens  of  that  State. 


Alien  Friends. 

As  to  alien  friends,  doctrines  of  comity  apply;  and  it  is  a  rule  of 
practically  universal  recognition  that  the  courts  of  every  State  are  as 
open  to  the  citizens  of  every  friendly  nation — whether  resident  or 
nonresident  in  the  State  in  which  the  court  exists — for  purposes  of 
bringing  suit,  as  they  are  to  the  citizens  of  the  State. 


Alien  Enemies. 

Citizens  of  foreign  nations  with  which  the  United  States  govern- 
ment is  at  war  are  not  legally  entitled  to  bring  suit  in  the  courts  of  the 
State  of  Texas,  and  the  rule  is  usually  stated  that  they  can  not  do  so. 

The  tendency  of  modern  authorities  is  to  relax  the  rigor  of  this 
rule  so  far  as  it  may  be  necessary  to  prevent  actual  or  violent  dis- 
turbance of  either  the  person  or  property  of  the  alien  enemy;  and 
hence,  while  the  strict  letter  of  the  law  seems  to  deny  him  redress  in  all 
civil  cases,  yet  we  think  that  the  courts  would  recognize  his  property 
rights  to  the  extent  of  protecting  them  from  force  or  violence.  It  is 
perfectly  clear  that  so  long  as  he  is  permitted  to  remain  in  the  State 
and  is  a  noncombatant,  his  person  is  within  the  protection  of  the 
criminal  law.  An  alien  enemy  within  the  limits  of  the  State  is  al- 
ways subject  to  be  sued  if  service  can  be  had  on  him;  and  when  he  is 
sued  he  is  permitted  to  make  every  defense  in  the  case  that  a  citizen 
could.20 


19  Const.  U.  S.,  art.  IV,  sec.  2,  par.  1. 

20  McVeigh  v.  United  States,  11  Wall.,  259;  Masterson  v.  Howard,  18  Wall.,  99. 


172  PARTIES    TO    ACTIONS WHO    MAY    SUE   AND   BE    SUED. 


LEGAL  STATUS. 

The  second  classification  will  be  made  with  reference  to  the  legal 
status  of  parties.  As  to  this  they  may  be  divided  into  two  general 
classes, — persons  sui  juris.,  and  persons  non  sui  juris. 

There  are  disqualifications  which  attach  to  the  person  as  such  and 
apply  to  him  in  all  litigation  without  regard  to  the  particular  matter 
involved  in  the  suit;  there  are  others  which  do  not  attach  to  the  person 
as  such,  but  grow  out  of  some  special  conditions  or  circumstances  con- 
nected with  the  particular  matters  involved.  The  first  general  per- 
sonal disqualifications  are  matters  of  legal  status,  and  a  person  sub- 
ject to  any  one  of  them  is  not  regarded  as  sui  juris;  the  second  are  not 
matters  of  legal  status,  but  are  mere  exceptional  limitations  on  the 
person's  legal  capacity  to  represent  himself  in  the  assertion  of  par- 
ticular rights. 


Persons  Sui  Juris. 

This  class  embraces  all  persons  not  subject  to  any  continuing  disa- 
bilities in  law  or  in  fact.  All  persons  are  presumed  to  be  sui  juris  until 
the  contrary  appears,  hence  the  rule  is  that  each  person  may  sue  or  be 
sued  in  his  own  name  and  right  as  to  matters  in  which  he  is  inter- 
ested, unless  the  special  facts  are  shown  which  disqualify  him  from 
so  doing.  Among  the  most  important  of  the  special  conditions  which 
affect  the  right  to  sue  are  those  which  peremptorily  withdraw  property 
from  the  possession  of  the  real  owner  and  place  it  in  the  custody  of 
some  other  person  for  some  special  purpose,  such  as  an  assignment  for 
the  benefit  of  creditors,  existence  of  trust  estates  of  different  kinds, 
administration  of  estates,  etc.,  when  any  of  these  conditions  exist  the 
parties  really  interested  in  the  estates  or  property  are  as  a  rule  pre- 
cluded from  individually  asserting  their  rights,  but  are  required  to  sue 
and  be  sued  through  or  in  connection  with  the  representatives  of  the 
fund  or  estate. 

Assignment  for  the  Benefit  of  Creditors. 

An  assignee  for  the  benefit  of  creditors  under  the  statute  is  author- 
ized to  conduct  all  litigation  necessary  to  reduce  to  possession,  hold,  and 
preserve  the  property  assigned,  or  to  collect  and  realize  upon  all 
choses  in  action.  He  holds  the  legal  title  to  the  property  for  the  pur- 
poses of  the  assignment,  and  is  legally  entitled  to  its  custody  and  con- 
trol for  that  purpose,  subject  to  the  orders  of  the  court  having  juris- 
diction. All  actions  against  the  estate  must  be  brought  against  him,  and 


LEGAL    STATUS.  173 

the  assignee  should  not  be  joined.  Action  against  the  assignee  for  mis- 
management or  for  any  failure  of  duty  as  assignee  must  be  brought 
against  him  in  the  court  where  the  assignment  is  pending.  The  plaintiff 
in  these  suits  should  be  the  parties  aggrieved  by  the  conduct  complained 
of;  usually  they  are  the  creditors  of  the  assignor  whose  rights  are 
jeopardized.  All  such  parties  may  join  in  the  suit,  or  a  part  may  sue  for 
the  benefit  of  all.  The  same  general  doctrines  obtain  as  to  common  law 
assignments,  except  that  in  them  no  particular  court  has  charge  of  the 
estate,  and  suits  regarding  its  management  must  be  brought  in  the  court 
having  jurisdiction  and  venue  under  ordinary  conditions  and  rules.21 

Trustees  and  Beneficiaries. 

The  kinds  of  trusts  that  may  exist  and  the  means  by  which  they 
may  be  created  are  exceedingly  numerous  and  it  is  impossible  to 
formulate  rules  to  apply  alike  to  all  of  them.  So  far  as  the  question 
of  parties  is  involved,  the  general  rule  is  that  in  all  litigation  involv- 
ing a  trust  estate,  both  the  trustee  and  the  beneficiaries  should  be 
made  parties.  This  rule  applies  whether  the  subject  matter  of  the 
trust  be  real  estate,  tangible  personal  property,  or  choses  in  action.22 
There  are,  however,  several  exceptions.  The  first  is  in  those  cases  in 
which  by  the  terms  of  the  trust  the  power  to  litigate  regarding  it  is 
expressly  conferred  upon  the  trustee.  Where  the  trust  is  created  by  a 
contract  which  confers  such  power  it  is  binding  so  long  as  the  trustee 
acts  in  good  faith,  and  does  nothing  to  forfeit  his  rights  under  the 
agreement.23  When  the  trust  is  created  by  law  or  the  express  orders 
of  a  court,  and  such  power  is  given,  it  is  binding  subject  to  same  limi- 
tations. 

Another  exception  occurs  where  the  beneficiaries  are  so  numerous  as 
to  make  it  inconvenient  and  impracticable  to  combine  them  as  parties. 
In  such  a  case  litigation  should  be  conducted  by  or  against  the 
trustee.24 

The  same  case  often  comes  within  both  these  exceptions,  as  where 
the  beneficiaries  are  very  numerous  and  the  instrument  creating  the 
trust  expressly  provides  that  the  trustee  may  proceed  in  his  own  name. 
Such  conditions  nearly  always  exist  with  reference  to  railway  mort- 
gages and  bonds  secured  thereby.  Another  exception  to  the  rule  re- 

a  Thomas  v.  Chapman,  02  Texas,  197;  Windham  v.  Patty,  62  Texas,  494; 
Moody  v.  Carrol,  71  Texas,  147,  8  S.  W.,  510;  Preston  v.  Carter,  80  Texas,  391, 
16  S.  W.,  17. 

22  Hall  v.  Harris,  11  Texas,  300;  Smith  v.  Ryan,  20  Texas,  064;  Ebell  v.  Bur- 
singer,  70  Texas,  122,  8  S.  W.,  77. 

"Monday  v.  Vance,  11  Texas  Civ.  App.,  374,  32  S.  W.,  559. 

-'Shaw  v.  Railway  Co.,  71  Mass.,  162;  Tunstall  v.  Wormley,  54  Texas,  476. 


174  PARTIES   TO   ACTIONS WHO    MAY    SUE   AND   BE    SUED. 

quiring  the  beneficiary  to  be  joined  is  in  pledge  of  choses  in  action  as 
collateral  security.  Ordinarily  there  are  express  terms  in  the  contract 
fixing  the  rights  of  the  pledgee.  In  the  absence  of  such  terms  he  may 
sue  in  his  own  name  and  collect  the  debt.25 

Executors. 

There  are  two  classes  of  executors  recognized  by  our  laws :  first, 
those  who  administer  estates,  in  conformity  with  the  will,  under  the 
direction  and  control  of  the  probate  court;  second,  those  in  whose 
favor  the  will  provides  that  no  supervision  shall  be  exercised  over  them 
by  the  court.  The  latter  are  usually  called  independent  executors. 

Executors  of  either  class  are  authorized  to  conduct  litigation  with 
regard  to  the  estate  which  they  are  administering  either  as  plaintiffs  or 
defendants,  without  the  necessity  of  joining  the  devisees  and  legatees. 
Such  suits  will  bind  all  parties  interested  in  the  estate  to  the  same 
extent  as  if  conducted  by  the  deceased  during  his  lifetime,  except  that 
judgments  therein  may,  of  course,  be  set  aside  by  any  person  interested  if 
fraud  or  collusion  on  the  part  of  the  executor  be  established.  The  rule 
stated  above  as  to  parties  applies  in  all  suits  brought  by  executors  and 
all  against  the  estate,  except  those  involving  title  to  real  estate;  in 
which  cases  the  heirs  must  be  joined  as  parties.  In  other  words,  the 
executor  may  bind  the  estate  in  suits  of  all  kinds  brought  by  him  in 
his  fiduciary  capacity,  and  in  suits  of  all  kinds  except  those  involving  the 
title  to  real  estate  brought  against  him  in  such  capacity.  In  the 
latter  class  of  suits  the  heirs  of  the  deceased  must  be  made  parties.26  An 
administrator  or  executor  of  an  estate  acting  under  the  direction  of 
the  probate  court  can  not  be  sued  on  any  liquidated  demand  founded 
upon  contract  until  the  claim  has  been  presented  to  him  and  re- 
jected.27 Unliquidated  claims  need  not  be  first  presented  for  ap- 
proval.28 Independent  executors  may  sue  without  any  special  authority, 
and  may  be  sued  without  the  claim  having  been  presented  to  him.29 

Administrators. 

Where  there  is  no  will  and  the  estate  is  in  the  charge  of  the  probate 
court,  litigation  concerning  it  must  be  conducted  by  and  against 
the  administrator,  except,  as  in  the  case  of  executors  in  suits  against 

25  Huyler  v.  Dahoney,  48  Texas,  239 ;  Daniels  on  Neg.  Inst.,  sec.  833. 
-"Key.    Stats.    1895,    arts.    1197,    1198. 

27  Rev.  Stats.  1895,  art.  2082;  Danzey  v.  Swinney,  7  Texas,  626;  Duty  v.  Gra- 
ham, 12  Texas,  437;  Western  Mortgage  Co.  v.  Jackman,  77  Texas,  622,  14  S. 
W.,  305. 

23Sutton  v.  Page,  4  Texas,  142;  King  v.  Cassidy,  36  Texas,  538. 
*Callaghan  v.  Grenet,  66  Texas,  238,  18  S.  W.,  507. 


LEGAL   STATUS.  175 

the  estate  involving  the  title  to  land,  where  the  administrator  and 
the  heirs  must  both  be  joined.30 

Upon  the  death  or  insanity  of  either  the  husband  or  the  wife,  the 
survivor  may  administer  the  community  estate  by  filing  an  inventory 
and  giving  a  bond  as  required  by  statute.  Such  an  administration  is 
largely  independent  of  the  probate  court,  and  the  administrator  may 
sue  or  be  sued  without  authority  from  that  court.31 

Persons  Non  Sui  Juris. 

Married  Women. 

The  first  class  of  persons  to  be  considered  under  this  head  are  married 
women.  While,  as  to  her  substantive  rights,  the  married  woman  has 
much  greater  privileges  in  this  State  than  she  had  at  common  law, 
the  same  enlargement  has  not  been  made  in  matters  of  procedure.  In 
almost  all  litigation  she  should  be  represented  by  her  husband.32  While 
she  is  interested  with  him  in  all  community  property,  she  is  rarely,  if 
ever,  a  necessary  party;33  and  only  in  a  very  few  instances  is  she  a 
proper  party  in  suits  with  reference  to  it.  The  husband  is  a  necessary 
party  to  all  suits  against  the  wife.34  She  is  usually  a  proper,  but 
rarely  a  necessary,  party  to  suits  involving  her  separate  estate,  since 
the  right  of  possession,  management,  and  control  of  such  property  is 
vested  in  the  husband,  and  the  right  to  litigate  regarding  it  is,  in  almost 
all  instances,  recognized  as  being  in  him.  Appropriate  allegations 
must  be  made  showing  that  the  subject  matter  of  the  suit  is  the  separate 
property  of  the  wife,  but  with  such  allegation  he  may  maintain  the 
suit  in  his  own  name  as  husband.35 

It  is  better  -practice  not  to  join  the  wife  in  suits  involving  the  title 
•or  damages  to  her  separate  estate,  though  she  is  a  permissible  party. 
She  becomes  a  necessary  party  when  her  interests  are  adverse  to  those 
of  her  husband,  and  must  then  be  joined.36  In  suits  for  personal  in- 

30  Rev.  Stats.  1895,  arts  1197,  1198. 

"Rev.    Stats.    1895,    arts.    2219-2221,    2236-2236a. 

MRev.  Stats.  1895,  arts.  1200,  1201,  1202. 

33  San  Antonio  St.  Ry.  Co.  v.  Helm.,  64  Texas,  149;  Walling  v.  Hannig,  73  Texas, 
581,  US.  W.,  547;   Edrington  v.  Newman,  57  Texas,  634. 

34  Carothers  v.  McNeese,  43  Texas,  223 ;  Roundtree  v.  Thomas,  32  Texas,  286. 

"Rev.  Stats.  1895,  art.  2851;  Taylor  v.  Murphy,  50  Texas,  291;  Houston  v. 
Schrimpf,  31  Texas,  609;  Leach  v.  Millard,  9  Texas,  552. 

34  San  Antonio  St.  Ry.  Co.  v.  Helm,  64  Texas,  149;  Texas  Pac.  Ry.  Co.  v. 
Medaris,  64  Texas,  93;  Lee  v.  Turner,  71  Texas,  265,  9  S.  W.,  149;  Wafford  v.  Un- 
ger,  55  Texas,  484;  Edrington  v.  Newland,  57  Texas,  634. 


176  PARTIES    TO    ACTIONS WHO    MAY    SUE   AND   BE   SUED. 

juries  sustained  by  the  wife  during  coverture  she  is  a  permissible  but 
not  necessary  party.37 

If  the  wife's  property  or  interest  is  being  injured  or  jeopardized 
and  the  husband  declines  to  sue,  she  may  proceed  in  her  own  name,  but 
must  allege  the  fact  of  her  husband's  unwillingness  to  join.88  For 
debts  contracted  by  the  husband  or  wife  during  coverture  and  for  which 
their  community  estate,  or  the  separate  property  of  the  husband  is 
sought  to  be  held  liable,  the  husband  alone  is  a  proper  party.  If  it  is 
claimed  that  the  wife's  separate  estate  is  liable,  she  must  be  joined, 
whether  the  suit  be  based  upon  an  antenuptial  debt  of  the  wife  or  on  a 
contract  made  by  her  after  coverture  on  which  she  is  sought  to  be  held 
personally  liable.39 

Infants. 

All  persons  under  twenty- one  years  of  age  except  married  women  and 
widows  are  infants.  Infants  can  neither  sue  nor  be  sued  in  their  own 
persons.  If  they  have  a  regular  guardian,  the  suit  must  be  prosecuted 
or  defended  by  him;  if  they  have  no  regular  guardian,  the  suit  must 
be  brought  by  their  next  friend  or  defended  by  their  guardian  ad  litem.*0' 

Persons  Insane  or  Otherwise  Incompetent. 

If  one  has  been  adjudged  idiotic,  insane,  or  an  habitual  drunkard,  and 
a  guardian  has  been  appointed  for  his  estate,  he  can  litigate  only  through 
such  guardian.41 

A  person  insane  or  idiotic  in  fact,  but  who  has  not  been  so  adjudged 
and  who  has  no  guardian,  may  sue  through  a  next  friend,  and  may  de- 
fend, when  sued,  through  a  guardian  ad  litem.*2 

COMBINATIONS  OF  NATURAL  PERSONS. 

The  business  interests  of  men  often  require  that  they  should  com- 
bine their  energy,  skill,  and  capital  in  the  prosecution  of  enterprises. 
The  law  has  different  methods  of  dealing  with  these  combinations  ac- 

37  Railway  Co.  v.  Burnett,  61  Texas,  638;  Gallagher  v.  Bowie,  66  Texas,  266, 
17  S.  W.,  407. 

""Mclntire  v.  Chappel,  2  Texas,  379;  Edwards  v.  Dismukes,  53  Texas,  612. 
30  Rev.   Stats.    1895,   arts.    1201,    1202. 

40  Rev.   Stats.    1895,   art.    1211. 

41  Rev.  Stats.  1895,  title  51,  chap.  15. 

"Abrahams  v.  Vollbaum,  54  Texas,  226;   Rev.  Stats.  1895,  art.  1211. 


COMBINATIONS    OF   NATURAL   PERSONS.  177 

cording  to  their  circumstances.  In  some  instances,  it  recognizes  the 
combination  as  so  complete  as  to  result  in  the  merger — so  far  as  that 
enterprise  is  concerned — of  the  individuals  into  a  new  legal  entity;  in 
others  it  recognizes  it  only  so  far  as  to  make  each  of  such  persons  and 
also  the  combination  legally  responsible  for  the  conduct  of  each  of  the 
members  of  the  combination,  within  the  legitimate  scope  of  such  en- 
terprise; and  in  still  others  it  does  not  go  even  to  this  extent.  These 
differences  in  substantive  law  and  right  are  recognized  in  the  law  of 
procedure  and  materially  affect  the  question  of  parties  to  suits. 


Partnerships. 

Partnerships  are  not  recognized  by  law,  either  common  or  Texas 
statutory,  as  constituting  separate  and  distinct  legal  entities,  and  there- 
fore the  right  to  sue  or  to  be  sued  in  the  partnership  name  is  not  conceded 
to  them  in  our  courts;  and  litigation  by  or  against  partnerships  must 
be  conducted  in  the  names  of  the  individual  members  of  the  firm  and 
mot  in  the  firm  name. 

The  usual  and  proper  method  is  to  give  the  names  of  the  individuals 
and  their  residences,  and  then  to  follow  with  a  statement  of  the  fact 
that  they  compose  a  firm  of  the  designated  name,  and  sue,  or  are  sued, 
as  members  of  such  firm.43  The  rule  requires  the  joinder  of  all  the 
members  of  the  firm,  but  an  exception  is  permitted  in  the  case  of  dor- 
mant partners,  that  is,  persons  whose  names  do  not  appear  in  the  firm 
name,  who  take  no  open  part  in  the  business,  anxl  who  are  not  known 
to  the  adverse  party  to  be  partners.  Formerly  this  ^relaxation  of  the 
rule  existed  only  in  behalf  of  parties  suing  the  firm,  on  the  theory  that 
it  was  not  just  to  deny  to  the  plaintiff  the  right  to  sue  persons  who 
were  known  to  be  under  legal  obligation  to  him,  because  he  was  not  able 
to  name  others  connected  with  them  in  the  business  and  who  con- 
sequently were  liable  to  suit.44  It  has  since  been  extended  to  cases  in 
which  the  firm  is  plaintiff,  though  the  reason  of  the  rule  can  not  be 
said  to  apply.45  After  the  death  of  one  or  more  members,  the  surviving 
partners  may  sue  or  be  sued  regarding  firm  matters  without  the  neces- 
sity of  joining  the  heirs  or  representatives  of  the  deceased  members.46 

a  Frank  v.  Tatum,  87  Texas,  204,  25  S.  W.,  409 ;  Tynburg  v.  Cohen,  67  Texas, 
222,  2  S.  W.,  734;  Kirbs  v.  Provine,  78  Texas,  353,  14  S.  W.,  849. 

"Speake  v.  Prewitt,  6  Texas,  252. 

"Keesey  v.  Old,  3  Texas  Civ.  App.,  1,  21  S.  W.,  693;  Boehm  v.  Calesch,  3  S.  W., 
293. 

"Jackson  v.  Alexander,  8  Texas,  109;  Watson  v.  Miller,  55  Texas,  290;  Dun- 
man  v.  Coleman,  59  Texas,  199;  Fulton  v.  Thompson,  18  Texas,  278. 

12 — Pleading 


178  PARTIES    TO   ACTIONS WHO   MAY    SUE   AND   BE    SUED. 

The  rule  that  all  members  of  the  firm  must  sue  or  be  sued  does  not 
apply  to  limited  partnerships;  but  it  does  apply  to  joint  stock  com- 
panies. 

Charitable,  social,  and  religious  organizations  which  are  unincor- 
porated are  not  regarded  as  partnerships,  and  causes  of  action  growing 
out  of  wrongs  and  injuries  to  or  by  them  are  recognized  as  existing  in 
favor  of  or  against  only  those  persons  who,  as  members  thereof,  partic- 
ipated in  the  transactions  out  of  which  the  causes  of  action  grow,  and 
in  suits  on  such  causes  of  action  such  members,  and  they  only,  need  be 
parties.47 


Private  Corporations. 

Private  corporations  are  recognized  by  the  law  as  having  legal  ex- 
istence separate  and  distinct  from  the  members  composing  them,  and 
can  sue  and  be  sued  in  their  corporate  capacity  and  name,  without  the 
necessity  of  naming  or  joining  the  stockholders.  The  usual  method  is 
to  bring  the  suit  for  or  against  the  corporation  by  name,  mentioning  the 
name  and  residence  of  one  or  more  of  its  officers  or  agents  through  whom 
it  may  be  served  with  process. 

While  corporations  are  recognized  as  artificial  persons,  having  for  the 
purpose  of  venue  and  territorial  jurisdiction  in  the  Federal  courts  resi- 
dence and  citizenship  in  the  State  by  which  they  are  created,48  they  are 
not  regarded  as  citizens  within  the  clause  of  the  Constitution  which 
guarantees  to  the  citizens  of  each  State  equal  rights  in  every  other  State 
with  the  citizens  of  the  latter, — consequently  no  State  is  under  any 
compulsion  from  the  Federal  Constitution  to  furnish  courts  to  adjudi- 
cate the  rights  of  corporations  created  in  other  States,  nor  to  allow 
such  corporations  the  privilege  of  suing  in  its  courts,  by  reason  of  any 
guarantee  contained  in  that  clause  of  the  Constitution.  And  unless  some 
other  basis  for  demanding  recognition  can  be  found  in  the  particular 
case  the  corporation  must  abide  the  State  regulations.49 

The  Interstate  Commerce  clause  in  the  Federal  Constitution,  however, 
does  apply  to  and  include  corporations ;  and  wherever  the  right  involved 
is  such  an  one  as  can  be  claimed  under  that  clause  it  can  not  be  abridged 
by  the  State  government.  It  has  been  frequently  decided  that  States 

47  Mech.   on   Part.,   sec.   7. 

48  Railway  Co.  v.  Harris,   12  Wall.,  60 ;   Louisville,  etc.,  Ry.  Co.  v.  Letson,  2 
How.,  497;  Marshall  v.  Railway  Co.,  16  How.,  314. 

®  Paul  v.  Virginia,  8  Wall.,  168 ;  Norfolk  &  W.  A.  Co.  v.  Pennsylvania,  136  U. 
•S.,  114,  10  Sup.  Ct.  Rep.,  958;  Pernbina,  etc.,  Co.  v.  Pennsylvania,  125  U.  S.,  181, 
8  Sup.  Ct.  Rep.,  737;  Weston  Paper  Bag  Co.  v.  Johnson,  38  S.  W.,  364;  Taber  v. 
Interstate  B.  &  L.  Assn.,  91  Texas,  92,  40  S.  W.,  954. 


CAPACITY   IN    WHICH    SUIT    MUST   BE   BROUGHT.  179 

can  not  make  prohibitory  laws  or  laws  compelling  the  payment  of  taxes 
or  license  fees  by  foreign  corporations  engaged  in  interstate  commerce 
as  conditions  precedent  to  their  doing  business  within  their  borders,50 
nor  can  they  make  the  right  to  do  such  business  depend  on  the  sur- 
render by  the  corporation  of  its  privilege  of  suing  in  the  Federal  courts, 
or  of  removing  into  the  Federal  courts  suits  which  may  be  brought 
against  it  in  the  State  courts.51 

There  are  a  number  of  Texas  cases  sustaining  the  validity  of  the 
present  Texas  statute  requiring  payment  of  tax  and  procuring  of  a 
license  before  suit  can  be  maintained  in  the  State  courts,52  except  in 
cases  arising  in  the  transaction  of  interstate  commerce.53 

If,  however,  the  transaction  out  of  which  the  suit  grows  took  place 
at  a  time  and  place  when  and  where  it  was  not  a  violation  of  the  statute 
the  corporation  may  bring  suit  on  it  without  having  paid  the  tax  and 
gotten  the  permit.54 

The  statute  does  not  apply  to  contracts  arising  in  interstate  or  in- 
ternational commerce  which  are  exclusively  within  the  jurisdiction  of 
the  Federal  government.55 

In  cases  in  which  the  statute  applies,  compliance  with  the  law  is  a 
condition  precedent  to  right  to  sue  and  must  be  plead  and  proved. 
Failure  to  plead  may  be  taken  advantage  of  by  demurrer,  and  failure 
to  prove,  after  being  plead  is  available  as  a  defense  on  the  merits,  thus 
disregarding  the  ordinary  rule  as  to  disability  of  the  plaintiff.56 

1 
CAPACITY  IN  WHICH  SUIT  MUST  BE  BROUGHT. 

Parties  to  suits  ordinarily  sue  or  are  sued  in  their  individual  or 
private  capacity;  but,  as  we  have  seen,  there  are  numbers  of  persons 
occupying  special  relations  towards  others,  or  towards  specific  prop- 
erty, which  require  that '  litigation  regarding  the  rights  of  such 
other  persons  or  in  such  property  should  be  conducted  by  them  in 
some  representative  capacity,  as  trustee,  executor,  administrator,  etc. 

00  Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.,  727,  5  Sup.  Ct.  Rep.,  739;  Bateman 
v.  Milling  Co.,  1  Texas  Civ.  App.,  90,  20  S.  W.,  931. 

^Borren  v.  Burnside,  121  U.  S.,  186;  Texas  L.  &  M.  Co.  v.  Worsham,  76  Texas, 
556,  13  S.  W.,  384. 

52  Rev.  Stats.   1895,  art.  746. 

53  Western  Paper  Bag  Co.  v.  Jolmson,  supra ;  Taber  v.  Interstate  B.  &  L.  Assn., 
supra. 

"Whiteley  v.  General  Electric  Co.,  45  S.  W.,  959;  Mansur  &  Tebbets  Imp.  Co. 
v.  Beer,  45  S.  W.,  972. 

50  Railway  Co.  v.  Davis,  55  S.  W.,  562;  Pasteur  Vaccine  Co.  v.  Burkey,  54  S. 
W.,  804. 

58  Western  Paper  Bag  Co.  v.  Johnson,  supra. 


180  PAKTIES   TO   ACTIONS WHO   MAY   SUE   AND   BE   SUED. 

The  law,  therefore,  requires  that  whenever  a  person  appears  in  court 
the  capacity  in  which  he  stands  at  the  bar  should  be  made  clear  in 
order  that  the  court  and  all  interested  parties  may  know  whether  he  sues 
or  is  sued  in  his  own  right  or  as  the  representative  of  some  other  in- 
terests. The  law  presumes  that  every  individual  sues  or  is  sued  indi- 
vidually, unless  the  contrary  affirmatively  appears  upon  the  face  of 
the  pleadings.  It  is  therefore  necessary,  whenever  one  desires  to  bring 
himself  or  an  adverse  party  before  the  court  in  any  way  except  as  an 
individual  representing  his  own  interests,  that  there  be  distinct,  specific 
allegations  to  this  effect,  showing  the  special  capacity  in  which  he  is 
before  the  court. 

It  has  been  adjudged  that  following  the  name  of  the  plaintiff  or  de- 
fendant by  such  words  as  executor,  administrator,  guardian,  trustee,  etc., 
is  not  a  compliance  with  this  requirement,  such  terms  being  merely 
descriptive  of  the  person  and  not  indicating  an  intent  to  sue  in  the 
capacity  to  which  the  term  applies.  If  a  petition  begins,  "A  B,  Exec- 
uor  of  C  D,  complaining  of  E  F,"  the  words  "Executor  of  C  D"  are 
merely  a  description  of  A  B,  and  the  estate  of  C.  D,  its  rights,  and  in- 
terests are  not  thereby  brought  before  the  court.  If  it  is  desired  to 
bring  the  suit  as  executor,  the  allegation  should  be,  "A  B,  duly  ap- 
pointed as  executor  of  the  estate  of  C  D  by  the  probate  court  of 

county,  on  the  ....  day  of  .  . .  .,  suing  as  such  Executor,"  or  some 
equivalent  language  showing  clearly  that  the  suit  is  brought  by  him  in 
his  fiduciary  capacity.  This  is  equally  true  of  persons  against  whom 
suits  are  brought.  If  they  are  to  be  sued  in  a  fiduciary  capacity,  this 
must  be  made  to  appear  affirmatively  upon  the  face  of  the  plaintiffs' 
petition,  otherwise  the  suit  will  be  regarded  as  brought  against  them 
individually.57  The  same  is  true  of  intervenors.  The  capacity  in 
which  they  come  before  the  court  must  be  made  to  appear. 

CTGayle  v.  Ennis,  1  Texas,  184;  Hall  v.  Pearman,  20  Texas,  169. 


GENERAL   PRINCIPLES.  181 


CHAPTER  IX. 

PAETIES  TO  ACTIONS   CONTINUED— JOINDER,   NONJOIN- 
DER, AND  MISJOINDER  OF  PARTIES. 

Heretofore  we  have  considered  who  may  sue  and  be  sued  and  in  what 
capacity  suits  may  be  brought  by  them.  The  next  matter  requiring  at- 
tention is  the  joining  of  different  persons  authorized  to  sue  or  to  be  sued 
as  plaintiffs  or  as  defendants  in  the  same  action.  This  subject  is  closely 
akin  to  joinder  and  mis  joinder  of  causes  of  action  discussed  in  a  previous 
chapter,  and  many  of  the  cases  and  part  of  the  discussion  of  that  topic 
are  equally  applicable  here. 


GENERAL  PRINCIPLES. 

No  one  is  bound  by  the  judgment  of  a  court  except  those  persons 
who,  in  legal  contemplation,  are  parties  to  the  suit,  or  who  hold  rights 
under  such  parties  or  in  privity  with  them;  or,  as  it  is  usually  expressed, 
the  judgment  of  a  court  is  binding  only  on  parties  and  privies.  It  fol- 
lows that,  in  order  for  the  litigation  to  be  effective,  it  is  necessary  to 
have  before  the  court  all  persons  whose  rights  are  either  directly  in- 
volved therein  or  sought  to  be  directly  affected  thereby.  It  is  very 
often  the  case  in  this  State,  where  the  joinder  of  causes  of  action  is 
freely  permitted,  and  where  prayers  for  alternative  relief  are  allowed, 
that  numerous  parties  will  have  interests  to  a  greater  or  less  extent 
involved  in  the  litigation,  and  that  among  these  interests  some  will  be 
more  direct  and  important  than  others.  In  such  a  state  of  affairs  it 
is  but  natural  that  words  should  be  used  with  different  meanings  and 
some  looseness  of  expression  should  occur. 


CLASSIFICATION    WITH    REFERENCE    TO    CONNECTION 
WITH  SUBJECT  MATTER. 

Classification  of  parties  based  on  their  connection  with  the  matters 
involved  in  the  litigation  separates  them  into  necessary,  proper,  and 
improper  parties. 


182  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 

(V)lf  f 

Necessary  and  Proper  Parties.  06$-*^ 

There  are  at  least  two  distinct  senses  in  which  the  tern/necessary  is 
applied  to  parties, — one,  the  strictest  sense,  including  omy  those  persons 
without  whose  presence  before  the  court  no  adjudication7  of  any  of  the 
subject  matter  involved  in  the  litigation  can  be  haw;  the  other,  em- 
bracing the  persons  just  indicated  and  also  such  othet  persons  as  may 
be  required  to  be  before  the  court  in,  order  that  one  or  more  of  the 
ancillary  or  subordinate  purposes  of  the  suit  can  be  accomplished. 

The  clearest  statement  of  the  meaning  of  the  term  necessary  parties 


which  I  have  found  is  given  by  Mr.  Pomeroy,1  ai 
equitable  actions,  a  broad  and  most  important  distin 
between  two  classes  of  parties  defendant;  namely, 


follows:  "In  all 
ition  must  be  made 
(1)  those  who  are 
'necessary/  and  (2)  those  who  are  'proper.'  i?ecgba*y  parties,  when 
the  term  is  accurately  used,  are  those  without  whom  no  decree  at  all 
can  be  effectively  made  determining  the  principal  issues  in  the  cause. 
Proper  parties  are  those  without  whom  a  substantial  decree  may  be 
made,  but  not  a  decree  which  shall  completely  settle  all  the  questions 
which  may  be  involved  in  the  controversy,  and  conclude  the  rights  of 
all  the  persons  who  have  any  interest  in  the  subject  matter  of  the  liti- 
gation. Confusion  has  frequently  arisen  from  a  neglect  by  text  writers, 
and  even  judges,  to  observe  this  plain  distinction.  Parties  are  some- 
times spoken  of  as  necessary  when  they  are  merely  proper.  Thus,  be- 
cause a  decree  can  not  be  rendered  which  shall  determine  the  rights 
of  certain  classes  of  individuals  without  making  them  defendants  in  the 
action,  they  are  not  unfrequently  called  necessary  parties;  or,  in  other 
words,  because  they  must  be  joined  as  defendants  in  a  particular  suit, 
in  order  that  the  judgment  therein  may  bind  them,  they  are  denom- 
inated 'necessary'  parties  absolutely.  Such  persons  are  'necessary'  sub 
modo — that  is,  they  must  be  brought  in  if  it  is  expected  to  conclude 
them  by  the  decre ;  but  to  call  them  'necessary'  absolutely  is  to  ignore 
the  familiar  and  fundamental  distinction  between  the  two  classes  of 
parties  which  has  just  been  mentioned.  This  inaccurate  use  of  language 
would  make  every  person  a  necessary  party,  who  should  actually  be 
joined  as  a  codefendant  in  an  equitable  action/' 

While  this  authority  treats  directly  of  practice  in  courts  of  equity, 
the  same  rules  apply  here,  since  the  plaintiff  is  allowed  to  seek  a  number 
of  remedies  either  in  equity  or  under  the  Texas  practice.  Principal 
issues  in  a  case  are  those  absolutely  essential  to  the  maintenance  of  the 
suit  stated  by  the  plaintiff,  and  ancillary  or  subordinate  issues  are  such 
as  grow  out  of  or  are  dependent  upon  the  main  issue,  and  which  fail 
whenever  that  is  determined  adversely  to  the  plaintiff,  but  which  are 

'Tomeroy's  Rem.  and  Rem.  Rights,  2  ed.,  sec.  329. 


CLASSIFICATION SUBJECT    MATTER.  183 

not  necessarily  involved  in  the  decision  of  the  main  issue  in  his  behalf. 
This  may  be  illustrated  by  a  suit  on  a  debt  secured  by  a  lien,  in  which 
the  plaintiff  desires  to  secure  a  personal  judgment  against  the  defendant 
for  the  debt  and  also  a  foreclosure  of  the  lien  against  the  property.  He 
may  establish  his  debt  and  get  a  judgment  against  the  defendant,  even 
though  his  proof  should  fail  as  to  the  lien;  but  if  his  proof  as  to  the 
debt  should  fail,  the  lien  being  an  incident  to  the  debt,  could  not,  of 
course,  exist,  and  a  decision  against  the  plaintiff  as  to  the  debt  would 
be  conclusive  as  to  the  whole  case.  As  the  existence  or  nonexistence 
of  the  debt  could  not  be  adjudged  against  any  one  except  the  debtor, 
he  would  be  a  necessary  party,  in  the  strict  use  of  that  term,  to  any  suit 
in  which  judgment  against  him  for  the  debt  was  sought;  but,  if  there 
were  some  other  person  having  no  connection  with  the  debt,  but  having 
some  right  in  the  property  upon  which  the  lien  rested,  he  would  not  be 
an  absolutely  necessary  party  to  the  suit  to  collect  the  money  from  the 
debtor.  The  principal  issue,  the  existence  of  the  debt,  could  be  ad- 
judged without  him.  If,  however  it  was  desired  to  bind  him  and  affect 
his  interests  in  the  property  by  the  judgment  of  foreclosure,  he  would 
in  that  point  of  view  ordinarily  be  a  necessary  part.  All  authorities 
would  agree  in  calling  the  debtor  a  necessary  party  to  the  litigation 
which  sought  personal  judgment  against  him,  while  the  person  inter- 
ested in  the  property  would  be  spoken  of  as  a  necessary  or  as  a  proper 
party  according  to  the  point  of  view  from  which  the  matter  was  re- 
garded. These  principles  apply  to  parties  in  all  classes  of  litigation. 
We  may  therefore  say,  that  in  the  eye  of  the  law  all  those  are  necessary 
parties  without  whose  presence  the  principal  issue  in  the  case  could  not 
be  determined.  All  those  are  proper  parties  who  are  directly  interested 
in  the  subject  matter  of  litigation  in  any  way,  and  these  proper  parties 
ordinarily  become  necessary  if  the  purpose  of  the  suit  is  to  affect  their 
interests  in  such  subject  matter.  The  interest  of  such  persons  may  be 
in  one  or  more  of  the  three  elements  constituting  subject  matter,  as  that 
term  has  been  previously  denned, — that  is,  it  may  be  in  the  rights 
sought  to  be  enforced,  in  the  wrongs  sought  to  be  redressed,  or  in  the 
remedies  sought  to  be  obtained,  including  the  issuance  and  execution 
of  process  employed  to  give  effect  to  these  remedies.  Interests  in  the 
litigation  may  also  result  from  some  claim  on  the  thing  or  res  out  of 
which  grow  the  rights  asserted  in  the  suit,  or  with  regard  to  which  they 
exist,  or  upon  which  the  alleged  wrongs  were  perpetrated,  or  to  which 
the  desired  means  of  redress  will  be  applied.  Every  person  having  a 
direct  and  ascertainable  interest  in,  these  matters  which  may  be  affected 
by  the  court's  action  in  the  suit  is  a  proper  party;  and,  if  it  is  desired 
to  bind  him,  is  a  necessary  party  to  the  suit. 


184  JOINDEB,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 

Improper  Parties. 

Persons  who  have  no  such  connection  with  or  interest  in  the  subject 
matter  of  the  suit  or  the  res  out  of  which  it  grows  as  to  make  them 
necessary  or  proper  parties  can  not  rightfully  be  brought  before  the 
court  in  the  case,  and  when  this  is  attempted,  the  persons  so  unlawfully 
joining  or  joined  are  called  improper  parties. 

The  above  classification  is  one  made  by  the  law,  and  exists  without 
reference  to  the  action  taken  by  persons  conducting  the  litigation  in  any 
particular  case. 

CLASSIFICATION  BASED  ON  MANNER   OP    CONDUCTING 
THE  LITIGATION. 

Classification  depending  upon  the  manner  of  bringing  and  conduct- 
ing the  particular  suit  will  now  be  considered.  Here  parties  are  divided 
into,  first,  those  who  are  sought  to  be  made  parties,  that  is,  all  those 
who  join  in  the  suit  as  plaintiffs  or  are  joined  as  defendants;  second, 
those  who  have  actually  been  made  parties,  by  joining  or  being  joined 
in  the  suit  and  by  having  been  subjected  to  the  active  jurisdiction  of  the 
court ;  and  third,  those  who  have,  in  law  and  in  fact,  been  made  parties, 
that  is,  those  who  have  been  rightfully  joined  and  who  have  been  actu- 
ally brought  within  the  active  jurisdiction  of  the  court.  The  first  of 
these  classes  includes  those  whom  the  parties  litigant  think  ought  to 
be  before  the  court,  but  who  may  or  may  not,  in  any  particular  case, 
be  identical  with  those  regarded  by  the  law  as  necessary  or  proper 
parties,  as  indicated  above.  Counsel  may  be  mistaken  as  to  who  are 
necessary  and  proper  parties,  and  may  have  failed  to  join  some  who 
should  have  been  impleaded.  This  would  be  a  case  of  nonjoinder.  On 
the  other  hand,  they  may  have  joined  some  person  as  a  necessary  or 
a  proper  party  whom  the  law  does  not  regard  in  such  a  light.  This 
would  be  a  case  of  mis  joinder.  Both  of  these  are  errors  that  should 
be  avoided.  The  second  class,  actual  parties,  includes  all  persons  who 
have  been  in  fact  joined,  whether  properly  or  improperly,  and  who 
have  actually  been,  brought  before  the  court.  The  third  class,  persons 
rightfully  before  the  court,  are  those  whom  the  law  requires  or  permits 
to  be  sued  and  who  have  in  fact  been  subjected  to  the  active  jurisdiction  of 
the  court  in  some  lawful  way.  This  would  not  include  parties  actually 
but  unlawfully  joined,  nor  those  lawfully  joined  but  not  yet  subjected  to 
the  active  jurisdiction  of  the  court.  It  is  only  between  parties  of  this 
third  class,  that  is,  those  who  are  rightfully  before  the  court  that  litiga- 
tion can  be  conducted.  In  proceedings  in  personam,  a  party  to  be 
bound,  must  be  within  the  active  jurisdiction  of  the  court  at  the  time 
the  judgment  is  rendered.  In  proceedings  in  rem,  as  we  have  seen,  all 


PLAINTIFFS,   DEFENDANTS,    INTERVENORS.  185 

persons  are  regarded  as  parties  and  no  actual  service  is  necessary.  In 
proceedings  quasi  in  rem,  our  Texas  courts  hold  that  the  kind  of  service 
contemplated  by  the  statute  is  necessary  to  give  jurisdiction.2 

Active  jurisdiction  may  be  acquired  by  the  court  in  two  ways, — first, 
by  voluntary  submission ;  and  second,  by  compulsion.3 


PLAINTIFFS,  DEFENDANTS,  INTERVENOES. 

With  reference  to  their  position  on  the  docket,  parties  are  designated 
as  plaintiffs,  defendants,  and  intervenors. 

The  common  law  rule  was  that  all  plaintiffs  must  be  adverse  parties 
to  all  defendants;  that  is,  all  persons  having  a  common  or  joint  right 
were  compelled  to  join  in  a  suit  against  those  who  violated  this  right. 
Inconvenience  very  often  arose  from  this  rule,  when  parties  thus  inter- 
ested declined  or  refused  to  join  in  the  litigation.  In  a  few  instances, 
therefore,  the  law  permitted  those  who  desired  to  sue  to  use  the  names 
of  those  who  did  not  so  desire,  by  joining  them  as  plaintiffs  in,  the  suit, 
indemnifying  them  at  the  same  time  against  liability  for  costs,  etc.4 
This  practice  was  allowed  only  in  extreme  cases  to  prevent  a  default 
of  justice. 

In  equity  the  rule  is  different;  the  plaintiffs  and  defendants  while 
usually  adversely  interested,  are  not  necessarily  so ;  and  not  infrequently 
persons  who  believe  their  rights  to  have  been  invaded  are  permitted  to 
sue  not  only  the  wrongdoers,  but  also  any  other  persons  who  may  be  in- 
terested with  the  plaintiffs,  but  who  do  not  care  to  join  in  bringing  the 
suit.'  The  court  will  then,  upon  final  hearing,  make  a  decree  adjusting 
the  rights  and  interests  of  all  parties,  as  the  facts  and  equity  seem  to 
demand. 

The  parties  against  whom  suit  is  brought  are  called  defendants.  As 
stated  above,  they  are  at  common  law  almost  invariably  interested  ad- 
versely to  those  suing  them;  but  in  equity  they  need  not  be  so. 

Any  person  who  is  not  included  among  those  originally  suing  or  sued, 
but  who  has  a  direct  and  substantial  interest  in  the  subject  matter  of 
the  suit  and  desires  to  make  himself  a  party,  may  do  so.  He  then  be- 
comes an  intervenor.  If  his  interests  are  adverse  to  those  of  both 
plaintiff  and  defendant,  his  designation  as  intervenor  continues,  but  if 
his  interests  are  identical  with  those  of  either  plaintiff  or  defendant,  he 
practically  becomes  identified  in  the  litigation  with  such  party,  which 
ever  it  may  be,  and  is  dealt  with  as  plaintiff  or  defendant  accordingly. 

"See  Chapter  III. 
3  See  Chapter  III. 
*  Andrews'  Am.  Law,  — 


186  JOINDER,    NONJOINDER   AND   MISJOINDER   OF    PARTIES. 


BULBS  AT  COMMON  LAW. 

At  common  law  great  attention  was  paid  to  joint  and  several  rights 
and  liabilities;  and  the  general  rule  was,  as  to  both  plaintiffs  and  de- 
fendants, if  the  right  involved  were  joint  all  those  jointly  interested 
were  required  to  join  as  plaintiffs,  and  if  the  liability  were  contractual 
and  joint,  all  must  be  sued  as  defendants ;  if  it  grew  out  of  a  joint  tort, 
the  tort  feasors  could  be  sued  jointly  or  singly  or  in  such  grouping  as 
the  plaintiff  might  elect.  If  the  right  were  several,  each  one  interested 
must  sue  separately,  and  if  the  liability  were  several,  each  must  be  sued 
separately. 

As  to  whether  there  could  be  joint  and  several  obligees  in  a  contract 
the  authorities  are  not  harmonious;  where  such  rights  were  recognized, 
the  parties  could  sue  jointly  or  severally;  where  such  rights  were  denied, 
all  the  obligors  must  join  if  the  agreement  were  binding,  none  could 
maintain  an  action  on  it  if  it  were  not.  There  is  no  difficulty  regard- 
ing the  same  contract  creating  joint  and  several  liability  and  in  such 
case  the  obligors  could  be  sued  jointly,  that  is,  all  together,  or  each  by 
himself;  but  no  middle  course  treating  some  as  jointly  liable  and  others 
as  severally  so,  was  permitted.5 

To  the  general  rules  above  stated  there  are  numerous  exceptions, 
some  of  which  have  been  adopted  in  our  practice. 

Among  these  is  the  doctrine  that  if  the  right  were  common  or  joint 
ownership  of  property,  this  conferred  upon  each  owner  a  several  right 
of  possession  of  the  whole  property  as  against  all  persons  except  those 
interested  with  him,  and  hence  in  possessory  actions  against  one  not 
so  interested,  any  one  or  any  number  of  the  co-owners  could  sue  and 
recover. 

Also  in  cases  of  several  trespasses  upon  the  same  right  by  the  same 
party,  it  was  permitted  to  sue  him  in  one  action  for  all  the  wrongs,  and 
later  the  doctrine  was  extended  so  that  if  several  parties  committed 
several  trespasses  on  the  same  right,  all  might  be  joined  in  one  suit. 

Whether  one,  or  any  number  of  joint  obligees  less  than  all,  could 
maintain  any  action  at  law  to  protect  their  rights  without  the  volun- 
tary joinder  of  all  is  a  mooted  question.  Messrs.  Stephens6  and  An- 
drews.7 holding  the  affirmative,  and  Messrs.  Pomeroy8  and  Bliss9  hold- 
ing the  negative. 

5  Dicey  on  Parties  to  Actions ;   Perry's  Common  Law  Pleadings,  chap.  5 ;   An- 
drews' Stephens  on  Pleadings,  chap.  1 ;  Cooley's  Elements  of  Torts,  38,  39 ;  Bishop 
Non-Contract   Law,   chap.   27. 

6  Andrews'  Stephens  on  Pleading,  sec.  19. 

7  Andrews'   Am.   Law,   p.    1105. 

8  Code  Rem.,  sec.  193. 

8  Bliss  on   Code   Plead.,  2   ed.,   sec.   62. 


RULE   IN    EQUITY.  187 


RULE  IN  EQUITY. 


There  is  no  dispute  that  in  equity  all  the  unwilling  parties  could  be 
made  defendants,  as  in  these  courts  parties  were  not  necessarily  divided 
according  to  their  respective  interests  in  the  matter  being  litigated, 
but  in  such  way  as  to  enable  the  court  to  do  justice  among  all  those 
interested;10  hence  in  some  instances  of  joint  right,  if  one  of  the 
persons  interested  were  without  the  realm,  outlawed,  or  otherwise 
beyond  the  jurisdiction  of  the  court,  those  joint  owners  or  holders 
who  were  in  the  jurisdiction  might  sue  and  recover  for  the  benefit 
of  themselves  and  of  the  absentee, — the  just  interests  of  all  parties 
being  protected  by  the  court  in  its  final  decree.  In  a  few  instances, 
also,  in  which  some  wrongful  act  or  series  of  acts  would  similarly 
affect  the  rights  of  a  large  number  of  persons,  such  persons,  or  a 
part  of  them,  were  permitted  to  join  in  a  common  equitable  pro- 
ceeding to  prevent  the  wrong, — as  in  the  familiar  case  of  a  large  num- 
ber of  property  owners  uniting  to  enjoin  the  collection  of  an  illegal 
tax  from  each  of  them,11  or  where  a  number  of  different  executions 
in  favor  of  different  parties,  but  against  the  same  person,  are  levied  on 
the  same  property  which  is  claimed  as  exempt  or  as  belonging  to  an- 
other; in  which  case,  the  claimant  of  the  exemption  or  of  the  prop- 
erty may  enjoin  all  the  different  execution  plaintiffs  in  one  suit.12 


TEXAS  RULES. 

We  have  no  legislation  directly  affecting  the  question  of  parties 
plaintiff,  and  the  courts  have  followed  the  rules  in  equity  on  that  sub- 
subject. 

The  statutes  have,  however,  made  very  important  changes  as  to 
joinder  of  defendants.13  These  will  be  noticed  in  connection  with  the 
several  kinds  of  suits  to  which  the  rules  have  reference. 

In  applying  these  general  rules  to  particular  kinds  of  cases,  we  will 
consider  them  in  the  following  order,  suits  affecting  real  estate,  either  as 
to  the  title  or  for  damages  thereto;  suits  relating  to  personal  property 
and  damages  thereto;  suits  arising  upon  contracts;  suits  arising  upon 
torts;  and,  last,  some  special  forms  of  proceeding.. 

^Hargrave  v.  Lewis,  6  Ga.,  207. 

u  Blessing  v.  City  of  Galveston,  42  Texas,  641 ;  George  v.  Dean,  47  Texas,  73. 

12  Clegg  v.  Varnell,  18  Texas,  301. 

"Rev.  Stats.  1895,  arts.  1203,  1204,  1256,  1257,  1258,  1259. 


188  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 

Actions  Concerning  Real  Property. 

Trespass  to  Try  Title. 

In  this  action  all  persons  claiming  under  the  title  sought  to  be  en- 
forced in  the  suit  are  proper  parties  plaintiff,  if  they  desire  to  join  in 
the  suit.  If,  however,  the  land  is  owned  jointly  by  a  number  of  persons, 
trespass  to  try  title  to  the  land  may  be  brought  and  maintained  by 
any  one  of  the  co-owners, — recovery  of  his  own  share  being  for  his  own 
benefit,  and  of  the  other  shares  inuring  to  the  benefit  of  his  co- 
owners.  This  grows  out  of  the  idea  that  each  co-owner  has  an  un- 
divided, unascertained  interest  in  each  and  every  parcel  of  the  land, 
and  is  therefore  entitled  to  the  possession  of  the  whole  as  against 
trespassers.14 

The  right  of  any  co-owner  is  not  an  exclusive  one  as  against  any 
other  co-owner,  and  can  not  be  asserted  against  him  or  them,  or  against 
persons  holding  under  them  or  any  one  of  them,  so  as  to  deprive  them 
of  the  benefits  of  their  interests.  It  follows  that,  if  any  one  of  the 
parties  sued  for  real  estate  by  one  or  more  co-owners  has  title  good 
against  any  of  the  co-owners,  recovery  would,  to  that  extent,  be  de- 
feated.15 

The  rule  having  been  adopted  that  the  cotenants  could  recover  the 
whole  land  against  a  stranger,  it  was  invoked  in  cases  in  which  limi- 
tation had  run  against  the  shares  of  one  or  more  of  the  cotenants,  but 
had  not  run  against  the  others,  by  the  latter  instituting  suit  for  the 
whole  tract  and  undertaking  to  recover  it  all.  It  was,  however,  held 
that  where  the  defendants  interposed  a  plea  of  limitation,  and  the  facts 
showed  that  the  claim  of  any  co-owner,  whether  party  to  the  suit 
or  not,  was  barred  at  the  time  of  the  institution  of  the  suit,  this  would 
defeat  a  recovery  of  the  share  so  barred. 

The  rule  as  to  the  recovery  of  the  whole  interest  by  one  cotenant 
does  not  hold  when  the  suit  is  in  the  nature  of  the  common  law  action 
of  quare  clausum  fregit  or  other  action  which  is  exclusively  for  dam- 
age and  does  not  involve  the  right  of  possession. 

Partition. 

In  suits  for  the  partition  of  real  estate,  all  the  persons  interested 
in  the  title  upon  which  the  suit  is  based  must  be  parties  to  the  suit  and 

"Croft  v.  Rains,  10  Texas,  523;  Watrous  v.  McGrew,  16  Texas,  506;  Sowers 
v.  Peterson,  59  Texas,  220;  Wright  v.  Dunn,  73  Texas,  295,  11  S.  W.,  330;  Boone 
v.  Kuox,  80  Texas,  644,  16  S.  W.,  448;  Musselman  v.  Strohl,  83  Texas,  477,  18 
S.  W.,  857 ;  Allen  v.  Peters,  77  Texas,  60,  13  S.  W.,  767 ;  Davidson  v.  Wallingford, 
88  Texas,  625,  32  S.  W.,  1030. 

"Murrill  v.  Wright,  78  Texas,  523,  15  S.  W.,  156;  Boone  v.  Knox,  80  Texas, 
644,  16  S.  W.,  448. 


TEXAS   RULES.  189 

must  be  cited,  either  personally  or  in  such  way  as  is  required  in  pro- 
ceedings quasi  in  rem.  Otherwise  the  case  can  not  be  tried  and  de- 
termined.16 

This  results  from  the  same  legal  principles  that  are  recognized  in  the 
recovery  of  the  whole  of  the  land  from  a  trespasser  by  one  of  the  joint 
owners, — namely,  that  each  owner  is  seized  of  an  undivided  and  un- 
ascertained interest  in  each  and  every  parcel  of  the  land;  and  as  the 
result  of  a  judgment  of  partition  is  to  change  this  undivided  right  in 
the  entire  tract  into  a  complete  and  separate  title  in  severalty  to  a  desig- 
nated portion  of  the  land,  divesting  out  of  each  owner  the  title  of 
every  part  except  that  allotted  to  him,  a  judgment  so  affecting  the  rights 
of  any  owner  can  not  be  rendered,  unless  he  is  before  the  court  actually 
or  in  such  manner  as  to  bind  in  a  proceeding  quasi  in  rem.  To  illus- 
trate,— six  persons  own  equal,  undivided  interests  in  a  tract  of  land. 
No  one  of  them  can  say  of  any  particular  acre  or  acres,  "This  is  my 
exclusive  property;"  but  he  has  an  undivided  one-sixth  interest  in 
each  any  every  part  of  the  land.  No  five  of  these  persons  can  separate 
their  interests  among  themselves  and  from  the  interest  of  the  sixth 
in  such  a  manner  as  to  bind  him ;  nor  is  a  court,  not  having  active  jur- 
isdiction over  either  him  or  the  land,  authorized  to  act  for  him  in  the 
premises  and  to  change  his  undivided  interest  in  the  whole  land  into 
a  several  title  to  a  designated  one-sixth  of  it.  Therefore,  every  per- 
son entitled  to  an  interest  as  joint  tenant  in  the  land  sought  to  be 
partitioned  is  a  necessary  party,  in  the  most  strict  sense  of  the  term, 
to  the  suit  for  partition.  As,  however,  such  a  proceeding  is  one  quasi 
in  rem,  the  court  may  proceed,  as  in  other  cases  of  that  kind,  upon 
constructive  service  on  the  defendant,  where  it  has  jurisdiction  over  the 
property.17  It  is.  of  course,  apparent  that  this  requirement  as  to  par- 
ties does  not  apply  to  persons  holding  claims  or  interests  in  the  land 
under  title  adverse  to  that  of  the  joint  tenants.  The  plaintiffs  are  not 
seized  of  an  undivided  interest  with  such  persons,  but  claim  adversely 
to  their  title.  Such  persons,  therefore,  need  not  be  joined.18  On  the 
other  hand,  it  is  well  settled  that  persons  may  adjudicate  adverse 
interests  in  the  land  in  controversy  and  obtain  a  decree  of  partition  in 
the  same  suit,  if  necessary  allegations  are  made  and  all  necessary  par- 
ties joined.19  Thus,  if  A  claims  an  entire  tract  of  land,  and  B  claims 
an  undivided  one-half  interest  therein,  under  the  same  title,  A  may 
bring  suit  against  B  for  the  whole  tract,  thereby  seeking  to  have  B's 

1<rCryer  v.  Andrews,  11  Texas,  181;  Lewis  v.  Ames,  44  Texas,  348;  Glascock 
v.  Hughes,  55  Texas,  469;  Buffalo  Bayou  Ship  Co.  v.  Bruly,  45  Texas,  8;  Noble 
v.  Meyers,  76  Texas,  281,  13  S.  W.,  229. 

"Taliaferro  v.  Butler,  77  Texas,  578,  14  S.  W.,  191;  Foote  v.  Sewall,  81  Texas, 
662,  17  S.  W.,  373. 

"Noble  v.  Meyers,  76  Texas,  282,  13  S.  W.,  229. 
19  Noble  v.  Myers,  supra. 


190  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 

claim  adjudged  invalid  as  against  him,  and  may  pray,  in  the  alter- 
native, that,  if  the  court  should  hold  that  B  did  own  an  undivided 
interest  in  the  land,  the  shares  of  the  respective  parties  be  adjudged  to 
them  and  the  land  be  partitioned  between  them.  Or,  if  in  such  a  case, 
A  made  no  prayer  for  partition,  B  could  by  appropriate  cross-action 
set  up  his  rights  and  ask  for  an  adjudication,  and  in  the  event  he 
established  his  right,  he  could  have  the  land  partitioned. 


ACTIONS  TO  REMOVE  CLOUD  FROM  TITLE. 

No  such  suit  could  be  brought  in  a  common  law  court.  In  equity, 
it  could  be  brought  only  by  a  person  in  possession  against  one  out  of 
possession  who  was  asserting  a  claim  or  interest  in  the  land  to  the  detri- 
ment of  the  possessor's  title.  And  no  such  suit  could  be  maintained 
upon  an  equitable  title.20  These  rules  are  not  recognized  in  Texas,  and 
possession  is  not  here  essential  to  the  maintenance  of  plaintiff's  case, 
and  an  equitable  title  may  be  relieved  from  a  cloud.21  In  these  suits, 
the  person  or  persons  owning  the  land  may  sue,  joining  as  defendants 
all  those  who  are  asserting  an  adverse  claim  of  such  character  as  casts 
a  cloud  over  his  or  their  title  and  interferes  with  its  full  and  legal  en- 
joyment. In  these  cases,  one  joint  tenant  may,  by  making  appropriate 
averments  as  to  the  facts,  bring  the  suit  for  the  benefit  of  all. 


SUITS  TO  FORECLOSE  LIENS. 

There  are  a  great  many  cases  in  our  Texas  reports  on  this  subject. 
The  question  of  parties  is  simple  so  long  as  neither  party  to  the  con- 
tract parts  with  his  rights  thereunder,  that  is,  until  transfer  of  either 
the  debt  or  land  is  made;  but  uncertainty  enters  so  soon  as  such  a 
transfer  has  taken  place.  All  vendors'  liens  grow  out  of  contracts  for 
sale  of  land,  and  it  is  impossible  to  understand  the  rules  as  to  parties 
to  suits  on  such  contracts  without  some  knowledge  of  the  legal  nature 
of  these  contracts  and  of  the  rights  of  parties  under  them. 

These  contracts  are  of  two  classes, — first,  those  executory  as  to  the 
title;  and  second,  those  executed  as  to  the  title.  Of  the  executory  con- 
tracts there  are  three  kinds ;  .first,  those  in  which  the  vendor  does  not 
execute  any  deed  at  all,  but  gives  a  bond  to  make  title  to  the  vendee 
upon  compliance  with  the  terms  of  the  sale ;  second,  those  in  which  the 
vendor  makes  a  deed  absolute  on  its  face,  but  simultaneously  takes 

20  Thomson  v.  Locke,  66  Texas,  383,  1  S.  W.,  112. 

21  Thomson  v.  Locke,  supra;   Sloan  v.  Thompson,  4  Texas  Civ.  App.,  419,  23 
S.  W.,  613. 


SUITS   TO    FORECLOSE   LIENS.  191 

back  a  mortgage  or  a  deed  of  trust  from  the  vendee  to  secure  the  pur- 
chase money;  and,  third,  those  in  which  the  vendor  executes  a  deed 
formal  in  all  respects,  except  that  it  recites  the  fact  that  all  or  a  part  of 
the  purchase  money  is  unpaid  and  reserves  an  express  lien  on  the  land 
to  secure  its  payment.  In  each  of  these  classes  of  cases  it  is  held  that  the 
superior  title  to  the  land  remains  in  the  vendor  and  that  only  an  in- 
c-hoatc  equity,  or  right  to  acquire  the  land  upon  compliance  with  his 
contract,  passes  to  the  vendee.22  Executed  contracts  are  of  two  kinds: 
first,  those  in  which  all  the  terms  of  the  contract  as  to  conveyance  of 
title,  payment,  etc.,  are  performed;  second,  those  in  which  a  deed 
formal  in  every  respect  is  executed  and  delivered  to  the  vendee,  re- 
taining no  express  lien  for  the  purchase  money,  although  all  or  a  por- 
tion thereof  remains  unpaid.  There  being,  in  the  first  of  these  classes, 
no  term  of  the  contract  remaining  unperformed,  no  litigation  can 
arise  as  to  foreclosing  liens.  As  to  those  of  the  second  class,  the  de- 
cisions hold  that  the  title  vests  in  the  vendee, — subject,  however,  to  an 
implied  lien  in  behalf  of  the  vendor  to  secure  the  unpaid  purchase 
money.23 

Under  the  very  liberal  rules  which  obtain  here  with  reference  to  the 
assignments  of  rights  and  the  power  of  the  assignee  to  sue  the  vendor  in 
any  of  the  four  cases  mentioned  in  which  the  purchase  money,  or  a  part 
of  it,  remains  unpaid  can  assign  the  debt  due  him,  and  such  assign- 
ment will  carry  with  it  the  lien  to  secure  the  payment,  the  party 
buying  having  the  right  to  sue  in  his  own  name  for  the  purchase 
money  and  to  foreclose  the  lien  for  his  own  benefit.24  Whether  or 
not  the  vendor,  assignor  of  the  debt,  would  be  a  proper  or  necessary 
party  to  such  a  suit  would  depend  upon  the  terms  of  the  assignment — 
in  construing  and  determining  which  the  ordinary  rules  applicable  to 
other  cases  of  contract  govern.  Under  our  peculiar  system,  it  is  held 
that  in  all  cases  in  which  the  contract  is  executory,  i.  e.,  the  title  has 
not  passed,  the  vendor  has  the  option,  upon  default  in  payment  of 
purchase  money,  to  sue  for  the  amount  due  and  foreclose  his  lien  on 
the  land  to  secure  payment,  or  to  regard  the  contract  as  at  end  and 
bring  suit  of  trespass  to  try  title  for  the  land  against  the  vendee.  This 
right  of  choice  of  remedies  in  the  vendor  does  not  pass  to  his  assignee 
by  simple  assignment  or  transfer  of  the  purchase  money  debt;  but 
the  extent  of  the  right  of  an  assignee  under  such  an  assignment  of 

"Webster  v.  Mann,  52  Texas,  416;  Cassaday  v.  Frankland,  55  Texas,  452; 
Rogers  v.  Blum,  56  Texas,  1;  Hamblen  v.  Folts,  70  Texas,  135.  7  S.  W.,  834;  Kauf- 
man V.  Brown,  83  Texas,  45,  18  S.  W.,  425. 

23  Baker  v.  Comptori,  52  Texas,  261 ;  Riggs  v.  Hanrick,  59  Texas,  570. 

24  Moore  v.  Raymond,  15  Texas,  556;   Scott  v.  Mann,  36  Texas,  157;  Elliot  v. 
Blanc,  54  Texas,  218;  Russell  v.  Kirkbridge,  62  Texas,  456;  McCamley  v.  Water- 
house,  80  Texas,  343,  16  S.  W.,  19. 


192  JOINDER,    NONJOINDER   AND   MIS  JOINDER   OF   PARTIES. 

the  debt  is  to  collect  the  debt  and  to  foreclose  the  lien  securing  it.25 
He  can  not  maintain  an  action  of  trespass  to  try  title  unless  he  has 
bought  the  interest  of  the  vendor  in  the  land  and  has  had  such  inter- 
est formally  conveyed  to  him.  By  an  assignment  of  the  debt  and  a  con- 
veyance of  the  vendor's  remaining  interest  in  the  land,  he  would  ac- 
quire all  the  rights  of  the  vendor  and  could  enforce  them  just  as  the 
vendor  could  have  done  if  no  assignment  had  been  made.  If  these 
distinctions  regarding  the  effect  of  different  contracts  of  sale  upon  the 
title  to  the  land  are  kept  in  mind,  but  little  difficulty  as  to  parties  can 
arise  in  those  cases  in  which  the  vendor  alone  has  transferred  his 
rights.26 

The  question,  however,  of  who  are  necessary  and  who  are  proper 
parties  in  cases  of  transfers  or  sales  by  the  vendee  presents  more  diffi- 
culty. The  same  distinction  between  executed  and  executory  contracts, 
must  be  kept  in  mind.  The  vendee  under  an  executory  contract  for  tl-e 
purchase  of  land  does  not  acquire  the  legal  title  to  the  land,  as  against 
the  vendor,  but  only  an  inchoate  equity  in  it.  This  equity  is  transfer- 
able, but  the  person  buying  acquires  no  greater  right  than  was  held 
by  his  vendor,  the  vendee  in  the  former  contract.  As  the  superior 
legal  title  as  against  the  first  vendee — now  become  second  vendor — 
remained  in  the  first  vendor,  and  as  the  second  vendor  is  charged  by 
law  with  notice  of  this  fact  and  has  obtained  no  greater  right  than 
his  vendor  had,  it  follows  that  the  original  vendor  can  enforce  against 
the  second  vendee  every  right  that  he  could  have  enforced  against  the 
first  vendee.  And,  since  the  right  of  the  second  vendee  is  but  an 
equity  and  the  original  vendor  could  upon  default  of  the  original 
vendee  rescind  the  contract  and  enter  and  take  possession  of  the  land, 
then  it  also  follows,  that  as  no  part  of  his  right  was  lost  by  the  sale, 
he  may  rescind  the  contract,  bring  suit  against  the  second  vendee, 
and  recover  from  him  the  possession  of  the  land;  or  he  may,  if  the 
first  vendee  be  still  in  possession,  sue  him  without  the  necessity  of  join- 
ing the  second  vendee,  and  judgment  so  obtained  will  be  enforced 
against  the  second  vendee's  interests  and  rights  in  the  land,  unless 
by  appropriate  action  he  make  himself  a  party  and  have  his  equities 
adjudged.27  As  the  original  vendor  can  not  be  compelled  to  receive 
the  second  vendee  as  his  debtor,  so  he  may  elect  to  sue  the  original 
vendee  for  the  amount  due,  foreclose  the  lien  against  him,  and  buy  in 
the  land,  thereby  acquiring  title  under  which  he  could  obtain  possession 
of  the  land  as  against  the  second  vendee,  although  he  had  not  been 
a  party  to  the  proceedings.  In  this  sense  the  second  vendee  is  not  a 


25  Baker  v.  Compton,  supra;  Russell  v.  Kirkbridge,  supra;  Elliot  v.  Blanc,  supra. 

26  Crafts  v.  Daugherty,  69  Texas,  480,  6  S.  W.,  850 ;  Hamblen  v.  Folts,  70  Texas, 
36,  7  S.  W.,  834. 

"Ufford  v.  Wells,  52  Texas,  612;  Foster  v.  Powers,  64  Texas,  247. 


SUITS   TO    FORECLOSE   LIENS.  193 

necessary  party  to  the  suit  against  the  first  vendee,  either  in  the  action 
of  trespass  to  try  title  or  in  that  to  foreclose  the  vendor's  lien,  but  in 
neither  case  would  a  judgment  obtained  without  joining  the  second 
vendee  be  final  against  him.  By  intervening  in  the  suit  brought  by 
the  original  vendor  and  setting  up  his  equities  and  tendering  the 
amount  due,  he  could  defeat  the  foreclosure  of  the  lien  or  the  recovery 
of  the  land,  as  the  case  might  be.  If  he 'were  not  joined  and  did  not 
intervene  in  the  suit  and  a  judgment  for  the  amount  due  were  ob- 
tained in  a  suit  for  the  debt  and  the  lien  foreclosed,  the  land  sold  and 
bought  in  by  the  vendor,  or  a  third  party  with  notice  of  the  rights  of 
the  second  vendee  he  may  still  within  a  reasonable  time  bring  an 
action  to  redeem  the  land  and,  by  tendering  the  amount  due  and  all 
the  costs,  can  secure  the  benefits  of  his  contract.  To  do  this,  however, 
he  must  take  the  initiative  and  must  not  be  guilty  of  any  laches.28  If 
the  original  vendor  desires  to  cut  the  second  vendee  off  from  this  priv- 
ilege, he  should  make  him  a  party  defendant  to  the  suit  in  the  first 
instance.  If,  however,  at  the  foreclosure  sale  the  land  were  bought 
in  by  a  third  party  without  any  notice  of  his  rights,  it  seems  that 
the  second  vendee  would  not  have  any  right  of  redemption  even, 
though  he  had  not  been  joined  in  the  foreclosure  suit.29 

With  reference  to  executed  contracts, — those  in  which  title  to  the 
land  passes, — the  rules  as  to  parties  are  in  some  respects  different.  As 
the  vendee  in  such  case  acquires  the  legal  title  and  not  an  inchoate 
equity,  and  the  purchaser  from  him  acquires  the  same  title,  no  action 
of  trespass  to  try  title  can  be  brought  by  the  vendor  against  either 
the  original  vendee  or  the  second  vendee.  He  does  not  own  the  land 
and  can  not  recover  it.  His  only  remedy  is  to  sue  for  the  debt  and 
foreclose  his  lien;  and,  as  this  would  be  a  suit  to  foreclose  a  lien 
upon  property  the  legal  title  to  which  was  not  in  the  debtor,  in  order 
to  affect  in  any  way  the  interests  of  the  owner  by  the  suit  and  judg- 
ment of  foreclosure,  he  must  be  made  a  party  to  the  suit.  In  these 
cases,  unlike  those  just  referred  to,  the  burden  of  taking  the  initiative 
in  determining  their  respective  rights  rests  on  the  vendor,  and  he  can 
in  nowise  affect  the  second  vendee's. right  either  of  possession  or  of  title 
by  a  proceeding  to  which  the  second  vendee  is  not  a  party.  So  that 
in  this  class  of  cases,  the  second  vendee  is  a  necessary  party  in  a  more 
comprehensive  sense  than  in  the  former.30 

Clifford  v.  Wells,  supra;  Foster  v.  Powers,  supra;  Land  &  Cattle  Co.  v.  Boon, 
73  Texas,  548;  Pierce  v.  Moreman,  84  Texas,  596;  Bradford  v.  Knowles,  86  Texas, 
505;  Spencer  v.  Jones,  92  Texas,  516.  (^cAf^^r*^-^  -\i .  9O — • — \ — ^^^^^  •  Jf  £*•<**• 

29  Cases  cited  in  last  note. 

80  Bradford  v.  Knowles,  supra,  and  cases  cited  therein. 
13 — Pleading 


194  JOINDER,    NONJOINDER   AND   MIS  JOINDER   OF    PARTIES. 

Rules  When  Series  of  Notes  Given. 

It  is  a  very  general  custom  in  selling  land  to  have  a  number  of 
payments  maturing  at  different  times,  and  to  take  negotiable  notes 
evidencing  these  different  installments,  all  of  which  are  secured  by 
lien,  expressed  or  implied,  on  the  lands.  Quite  a  number  of  cases  have 
arisen  presenting  different  questions  as  to  parties  and  priority  of  right 
in  suits  of  this  kind  where  the  notes  are  held  by  different  persons. 
The  general  doctrine  on  the  subject  in  the  absence  of  agreement  to 
the  contrary  is  that  among  the  several  assignees  of  the  notes  no  one  is 
entitled  to  preference.  The  difference  in  the  time  of  maturing  of  the 
several  obligations  does  not  make  the  notes  maturing  later  junior 
liens  as  against  the  notes  maturing  earlier,  and  each  is  entitled  to  its 
security  and  proportionate  distribution  of  the  proceeds  of  the  property. 
The  result  of  this  is  that  all  persons  holding  any  of  such  notes  should 
be  made  parties  to  the  suit  seeking  to  foreclose  the  lien  securing  any  one 
of  them.  If  the  suit  is  brought  on  the  motes  last  falling  due,  the 
lien  should  be  foreclosed  for  the  benefit  of  the  holders  of  the  entire 
series  of  notes,  and  the  proceeds  of  the  sale  should  be  distributed  pro 
rata  among  them.  If  before  maturity  of  all  the  notes  suit  for  fore- 
closure is  brought  by  the  holder  of  the  note  maturing  first  or  of  one 
or  more  maturing  at  some  intermediate  date,  the  amount  then  due  on 
each  mature  note  should  be  computed,  and  the  amount  then  payable  on 
each  note  subsequently  falling  due  should  be  estimated  by  the  rules  of 
discount,  and  judgment  should  be  rendered  dividing  the  proceeds 
of  the  security  among  the  holders  of  the  different  notes  according  to 
the  different  amounts  so  found.  Any  balance  which  might  remain 
due  upon  the  notes  already  mature  could  be  immediately  collected 
out  of  any  property  of  the  defendant  subject  to  execution,  but  no  ex- 
ecution could  be  awarded  as  to  any  balance  not  then  due,  until  the 
respective  dates  of  the  maturity  of  each,  at  which  time  if  the  judg- 
ment had  not  been  paid  off,  execution  should  be  issued  to  enforce  its 
collection.31 

Considerable  diversity  of  opinion  exists  as  to  the  respective  rights 
of  the  assignor  of  a  portion  of  such  notes  and  his  assignees  to  the  pro- 
ceeds derived  from  the  foreclosure  sale  of  the  property  in  the  absence 
of  any  special  contract  between  them.  The  courts  of  other  States 
are  about  equally  divided  on  the  subject,  The  Texas  Supreme  Court, 
in  Salmon  v.  Downs,32  approved  an  opinion  by  Judge  Quinan,  Com- 
missioner of  Appeals,  which  held  unequivocally  that  the  assignor,  in 


"Tinsley  v.  Boy  kin,  46  Texas,  596;  Gillmour  v.  Ford,  19  S.  W.,  442;  Barbish  v. 
Oatman,  39  S.  W.,   191. 

Ja55   Texas,   243. 


TO    FORECLOSE    MORTGAGES    AND   DEEDS    OF   TRUST.  195 

absence  of  express  contract,  was  not  in  any  sense  a  guarantor  of  the 
other  notes  nor  bound  to  make  them  good  nor  even  to  permit  all  the 
proceeds  of  the  property  to  be  distributed  among  them,  but  that  he 
was  entitled  to  share  in  such  proceeds  pro  rata  with  the  others.  This 
case  has  been  several  times  approved.33  In  the  case  of  Whitehead  v. 
Fisher,34  in  which  there  was  a  parol  agreement  that  the  assignor 
should  not  share  in  the  proceeds  of  the  property  until  the  notes  as- 
signed should  be  fully  paid,  the  Supreme  Court  sustained  the  agree- 
ment, and  said  also  that  the  law  would  require  this  course  in  the 
absence  of  agreement. 

In  Douglas  v.  Blount,35  decided  by  the  Court  of  Civil  Appeals  at 
San  Antonio,  the  rights  of  the  assignee  of  one  of  a  series  of  vendor's 
lien  notes  against  the  assignor  for  preference  in  the  proceeds  of  the 
property  upon  foreclosure  of  the  lien  came  up  directly  for  adjudica- 
tion. The  court  reviewed  many  cases,  including  all  those  cited  in  the 
last  two  notes,  and  held  that  the  assignee  was  entitled  to  preference. 
A  writ  of  error  was  applied  for  to  the  Supreme  Court  and  denied, 
thus  giving  apparent  sanction  to  the  rule  announced.  As  an  abstract 
proposition  the  conclusion  thus  reached  may  be  regarded  as  correct, 
but  the  doctrine  of  stare  decisis  seems  to  have  been  entirely  ignored 
in  arriving  at  it,  and  the  question  can  hardly  be  regarded  as  settled. 


SUITS  TO  FORECLOSE  MORTGAGES  AND  DEEDS  OP  TRUST. 

In  Texas  a  mortgage  or  a  deed  of  trust,  except  in  case  of  sale  of 
land  and  contemporaneous  taking  of  the  instrument  as  before  ex- 
plained, is  but  an  incident  to  the  debt,  and  the  beneficial  title  in  the 
land  incumbered  is  regarded  as  in  the  mortgagor  or  maker  of  the  deed 
of  trust,  as  the  case  may  be;  and  unless  there  is  specific  provision  clearly 
expressed  to  the  contrary,  he  is  entitled  to  possession,  and  upon  de- 
fault of  the  payment  of  the  money  the  mortgagee  or  the  beneficiary 
under  the  deed  of  trust  can  not  take  possession  of  the  land  mor  main- 
tain an  action  of  trespass  to  try  title  for  it,  but  must  either  have  his 
deed  of  trust  executed  according  to  its  terms  or  sue  to  foreclose  the  lien 
created  by  the  contract.36  This  being  so,  subsequent  vendees  from  the 
mortgagor  or  graintor  in  the  deed  of  trust  are  regarded  as  holders  of 

*  Wooters  v.  Hollingsworth,  58  Texas,  371;  McMichael  v.  Jarvis,  78  Texas,  671, 
15  S.  W.,  111. 

34  64  Texas,  638. 

35  55  S.  W.,  526. 

38  Wright  v.  Henderson,  12  Texas,  43;  Hudson  v.  Wilkinson,  45  Texas,  444; 
Soell  v.  Hadden,  85  Texas,  182,  19  S.  W.,  1087;  Baldwin  v.  Peet,  22  Texas,  718; 
Aggs  v.  Shackleford  Co.,  85  Texas,  149,  19  S.  W.,  1085. 


196  JOINDER,,    NONJOINDER   AND   MIS  JOINDER   OF   PAETIES. 

the  substantial  title  and  must  be  made  parties  to  any  suit  brought  for 
the  purpose  of  collecting  the  debt  out  of  the  property,  and  unless  they 
be  so  joined,  the  title  held  by  them  will  not  be  affected  by  the  suit  or 
judgment  or  sale  thereunder.37 


SUITS  FOR  DAMAGES  TO  LAND. 

Where  suit  is  brought  to  recover  for  damages  done  to  real  estate, 
it  is  proper  to  join  as  plaintiffs  all  persons  interested  in  the  title. 
Strictly  speaking,  one  cotenant  has  not  the  right  to  recover  the  en- 
tire damages  done  to  the  property.  He  may  sue  by  himself  and 
maintain  his  suit,  but  if  the  defendant  interpose  objection  at  the 
proper  time,  the  recovery  will  be  limited  to  the  pro  rata  share  of  the 
plaintiff.38  If  the  defendant  neglects  to  interpose  such  objection,  and 
allows  the  recovery  of  the  whole  amount  of  damages  against  him, 
this  would  be  no  defense  against  a  claim  by  the  other  cotenants  for 
their  respective  shares,  and  he  would  be  compelled  to  pay  them,  even 
though  he  had  already  paid  the  first  judgment. 


ACTIONS  WITH  REFERENCE  TO  TITLE  AND  POSSESSION 
OF  PERSONAL  PROPERTY. 

In  suits  involving  title  to  personal  property  all  joint  owners  should 
be  made  parties  plaintiff.  The  doctrine  with  reference  to  real  estate 
which  permits  one  cotenant  to  recover  for  all  would  seem  to  be  appli- 
cable here,  but  I  have  found  no  case  in  which  the  point  is  made  or  di- 
rectly decided;  and  it  seems  to  be  the  universal  practice  to  join  all 
owners  in  such  suits.  This  joinder  is,  of  course,  necessary  only  in  those 
cases  in  which  the  plaintiff  proves  title  by  evidence  besides  mere  pos- 
session. Prior  possession  of  personal  property  is  always  prima  facie 
evidence  as  to  title  and  is  good  as  against  a  trespasser;  and  of  course 
bach  possession  by  one  co-owner  would  be  as  effectual  to  sustain  the 
suit  as  by  a  person  who  had  no  other  title  whatever. 

In  a  suit  for  damages  for  conversion  or  injury  to  the  property  all  the 
co-owners  should  join  as  plaintiffs.39 

87  Hall  v.  Hall,  11  Texas,  547;  Mills  v.  Traylor,  30  Texas,  11;  King  v.  Brown, 
80  Texas,  278,  16  S.  W.,  39;  Clark  v.  Gregory,  87  Tex*»,  193,  27  S.  W.,  56. 

38  May  v.  Slade,  24  Texas,  208;  Williams  v.  Davis,  56  Texas,  250;  Gillum  v. 
Railway  Co.,  4  Texas  Civ.  App.,  622,  23  S.  W.,  716;  Lee  v.  Turner,  71  Texas,  266, 
9  S.  W.,  149. 

89  Hill  v.  Newman,  67  Texas,  266,  3  S.  W.,  271. 


PARTITION.  197 


PARTITION. 

Suits  for  partition  of  personal  property  are  very  rare.  The  same 
general  principle  applies,  however,  as  in  the  partition  of  real  estate, 
and  all  the  co-owners  must  be  parties.40 


SUITS  TO  FORECLOSE  LIENS  ON  PERSONAL  PROPERTY. 

There  are  no  peculiar  principles  of  law  applicable  here.  If  the 
lien  is  one  growing  out  of  contract,  all  parties  to  the  comtract  and  those 
directly  interested  therein  are  ordinarily  necessary  parties;  but  to  this 
there  are  numerous  exceptions.  Some  have  already  been  discussed 
under  the  head  of  "Trustees  and  Beneficiaries/'41  and  of  "Assign- 
ments."42 If  the  purpose  of  the  suit  is  to  foreclose  the  lien  existing 
in  behalf  of  a  number  of  persons  to  compel  a  general  distribution  of 
the  funds  in  the  hands  of  the  trustee  or  assignee,  all  the  beneficiaries 
should  be  made  parties.  If  this  is  not  desired,  they  need  not  be  joined. 
In  the  latter  case,  if  the  lien  holders  have  rights  prior  to  those  of  the 
plaintiff,  his  foreclosure  sale  would  be  made  subject  to  such  prior  liens 
and  would  not  affect  them.  The  purchaser  at  such  foreclosure  sale 
would  acquire  only  an  equity  of  redemption.  If  the  rights  of  the  lienors 
are  subsequent  to  the  rights  of  the  plaintiff,  then  by  the  foreclosure  suit 
and  sale  the  plaintiff  would  not  cut  off  their  equity  of  redemption,  but 
would  acquire  the  interest  of  the  debtor  in  the  property  upon  which  the 
lien  rested — subject  to  the  right  of  redemption  by  the  subsequent  lienors 
who  had  not  been  made  parties. 


SUITS  FOR  DAMAGE  TO  PERSONAL  PROPERTY. 

Here  the  same  principles  are  applied  as  in  similar  suits  regarding 
real  estate.  The  plaintiff,  if  he  is  sole  owroer,  is  entitled  to  recover 
the  entire  amount  of  injury;  if  he  is  a  co-owner,  the  defendant  could 
by  making  the  defense  at  the  proper  time  and  in  the  proper  way,  have 
the  damage  apportioned,  and  the  plaintiff  would  recover  only  his  pro 
rata  share.  If  no  such  defense  was  made  and  the  full  amount  of  the 
damage  was  recovered,  the  wrongdoer  would  not  thereby  be  protected 
from  liability  to  the  other  co-owners  for  their  respective  shares.43 

40  See  cases  in  note  on  that  head. 

41  Ante,  p.  173. 
"Ante,  p.   172. 

43  Hill  v.  Newman,  supra. 


198  JOINDEK,    NONJOINDER   AND   MISJOINDER    OF    PARTIES. 


SUITS  ON  CONTRACTS. 

At  common  law  the  difference  between  joint,  joint  and  several,  and 
several  contracts,  is  great  and  is  rigidly  insisted  upon.  Joint  eon- 
tracts  are  those  in  which  the  parties  are  jointly  and  collectively! 
bound  to  perform  the  duties  or  are  entitled  collectively  to  enjoy  the 
rights  resulting  from  the  contract.  The  extent  of  the  liability  of  each 
joint  obligor  is  as  great  as  if  he  alone  were  bound  for  its  performance, 
but  his  contract  does  not  bind  him  to  perform  his  undertaking  singly, 
but  only  in  connection  with  all  his  co-obligors.  In  the  same  way  the 
rights  of  the  co-obligees  are  due  to  them  collectively  and  not  to  any  one 
of  them  separately.  It  results  from  this  that  if  a  contract  is  disre- 
garded or  violated  by  any  one,  all  persons  interested  in  the  right  must 
at  common  law  join  in  the  suit  to  enforce  it.  That  is — if  A,  B,  and  C 
are  joint  obligees  in  an  undertaking,  and  this  is  not  performed,  A  can 
not  sue  on  it,  nor  can  A  and  B,  but  A,  B  and  C  must  sue  jointly,  be- 
cause performance  is  not  due  to  A,  nor  to  A  and  B,  but  to  A,  B,  and  C ; 
and  no  number  less  than  all  can  enforce  the  undertaking.  The  same 
rule  applies  at  common  law  to  the  obligors.  If  A,  B,  and  C  are  jointly 
liable  on  an  undertaking  to  do  a  certain  thing,  it  is  not  regarded  as 
the  separate  contract  of  A,  nor  as  the  joint  contract  of  A  and  B,  but 
as  the  joint  contract  of  A,  B,  and  C.  A  suit  to  enforce  it  must  be 
brought  against  them  all.  These  rules  are  at  common  law  affected  by  the 
doctrine  of  survival.  If  one  of  a  number  of  persons  holding  a  joint 
right  dies,  his  interest  does  not  go  to  his  heirs,  but  vests  in  the  re- 
maining joint  obligees,  and  this  process  may  continue  until  by  the 
death  of  all  but  one  of  them  the  whole  benefit  is  vested  in  this  sole 
survivor.  As  under  the  law  no  one  is  entitled  with  him,  this  right 
upon  his  death  descends  as  all  similar  property  held  in  severalty  by 
hrn.  And  so  with  the  obligation;  upon  the  death  of  one  obligor,  his 
obligation  ceases,  and  his  estate  is  not  bound,  the  whole  burden  falling 
on  the  surviving  obligors.  This  process  may  continue  until  only  one 
is  left,  upon  whom  the  whole  burden  rests  as  a  several  obligation. 
This  is  the  common  law  doctrine  of  survivorship.  It  results  from 
this  doctrine  that  in  suits  on  joint  obligations,  if  one  of  the  joint 
obligees  die,  the  remainder  must  all  sue,  and  the  representatives  of 
the  deceased  are  not  proper  parties.  If  one  or  more  of  the  obligors  die, 
all  the  surviving  obligors  must  be  sued  jointly,  and  the  representatives 
of  the  deceased  obligors  are  not  proper  parties.  In  equity  the  rule  as 
to  joinder  of  parties  is  not  so  strict. 

There  is  a  different  class  of  contracts  which  are  known  as  several. 
These  are  undertakings  in  which  the  parties  agree  to  bind  themselves 
separately,  that  is,  in  which  the  obligees  hold  separately  or  the  obligors 
promise  to  perform  separately.  There  may  be  a  number  of  parties  to 


SUITS   ON    CONTRACTS.  199 

the  contract,  but  each  is  entitled  to  the  benefits  or  undertakes  to  dis- 
charge the  whole  obligation  for  and  by  himself.  The  right  or  the 
undertaking  is  as  much  his  as  if  no  other  party  were  entitled  with  or 
had  promised  with  him.  In  such  a  case,  if  the  obligees  hold  separately 
(which  is  very  rare),  the  right  exists  in  behalf  of  each  and  may  be 
enforced  by  each  in  its  entirety — the  one  enforcing  it,  however,  being 
subject  to  an  account  to  the  other  obligees.44  In  like  manner,  if  the 
obligors  are  bound  severally,  it  may  be  enforced  against  each  of  them; 
just  as  if  no  other  party  were  bound. 

There  is  still  another  class  of  contracts  combining  many  of  the 
characteristics  of  each  of  the  preceding.  These  are  known  as  joint 
and  several  contracts.  Here  the  rights  and  duties  of  the  parties  are 
at  once  collective  and  single.  So  that  the  obligation  may,  at  the 
option  of  the  obligee,  be  regarded  as  the  joint  obligation  of  the  whole 
number  of  obligors,  or  as  the  several  obligation  of  any  one  of  the  ob- 
ligors, and  may  be  sued  on  accordingly.  The  obligee,  however,  is 
obliged  to  consider  it  either  joint  as  to  all  or  several  as  to  all.  He  could 
not  proceed  against  any  number  of  the  obligors  less  than  all  as  upon  a 
joint  obligation. 

So  far  as  plaintiffs  are  concerned,  the  rules  of  common  law  are  mod- 
ified very  little,  if  at  all,  in  the  Texas  practice.  All  obligees  in  a  joint 
contract  must  join  in  the  suit  to  enforce  it,  and  a  failure  to  do  so  will  cer- 
tainly subject  the  suit  to  a  plea  in  abatement  if  interposed  in  time,  and 
according  to  some  authorities  will  defeat  a  recovery  even  if  no  plea  in 
abatement  is  filed.45  However,  our  statutes  and  decisions  construing 
them  have  materially  modified  the  common  law  as  to  defendants  in 
suits  upon  joint  undertakings,  so  that  all  joint  obligors  who  are  princi- 
pals are  subject  to  be  sued  either  jointly  or  separately  with  all  or  any 
less  number  of  their  co-obligors  as  the  plaintiff  may  elect.46 

Where  a  party  is  surety  or  in  any  way  secondarily  liable  upon  a  con- 
tract, judgment  can  not  be  rendered  against  him,  unless  simultaneously 
therewith  or  prior  thereto  a  judgment  is  or  has  been  rendered  against 
the  principal  obligors,  except  in  those  cases  in  which  the  principal 
obligor  resides  beyond  the  limits  of  the  State,  or  in  such  part  of 
same  that  he  can  not  be  reached  by  ordinary  process  of  law,  or  his 
place  of  residence  is  not  known  and  can  not  be  ascertained  by  the  use 
of  reasonable  diligence,  or  he  is  dead  or  notoriously  insolvent.  The 
fact  that  the  plaintiff  has  been  unable  to  obtain  service  on  the  principal 
obligor  does  not  bring  the  case  within  the  operation  of  this  statute 


**  Beach  on  Modern  Law  of  Contracts,  chap.  18. 

^Holliman  v.  Rogers,  6  Texas,  91;  Stachely  v.  Pierce,  28  Texas,  328;  Hanner 
v.  Summerhill,  6  Texas  Civ.  App.,  764,  26  S.  W.,  906. 

"Rev.  Stats.  1895,  art.  1203;  Wooters  v.  Smith,  56  Texas,  198;  Keesey  &  Mur- 
phy v.  Old,  82  Texas,  22,  17  S.  W.,  928;  Miller  v.  Sullivan,  89  Texas,  480,  35  S. 
W.",  362. 


200  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 

unless  the  inability  be  for  one  of  the  reasons  enumerated.47  Where 
a  party  is  in  fact  a  surety  as  between  the  obligors,  but  appears  on 
the  face  of  the  obligation  as  principal,  this  article  does  not  apply.  In 
such  case  suit  may  be  brought  against  any  one  of  those  appearing  as 
principals  without  any  of  the  others,  or  in  case  they  are  all  sued  a 
discontinuance  may  be  entered  as  to  any  one  of  them,  although  as 
between  him  and  his  obligors  he  was  in  fact  a  surety.48 


TORTS. 

In  suits  for  tort  on  property  where  damage  is  sought  to  be  recovered 
all  parties  owning  the  property  should  be  plaintiffs.49  Where  the 
suit  is  for  the  recovery  of  the  property  itself,  it  may  be  brought  by 
any  one  of  the  co-owners  and  will  inure  to  the  benefit  of  all.  This 
is  settled  as  to  real  estate,  and  as  to  personal  property  the  same  rule 
is  thought  to  apply,  though  the  point  has  not  been  definitely  decided. 

With  reference  to  the  joinder  of  defendants  in  tort  cases,  the  rule 
is  universal  that  any  or  all  of  the  joint  tort  feasors  may  be  joined  at 
the  option  of  the  plaintiff.  He  is  not  required  to  sue  all  or  to  sue  any 
one,  but  may  sue  any  number.  He  may  maintain  his  suit  against  each 
separately  and  may  recover  judgments  against  as  many  as  he  can 
show  himself  entitled  to  recover  against ;  he  can,  however,  have  but  one 
satisfaction.50  As  before  seen,  where  the  plaintiff  has  a  right  which  has 
been  violated  by  several  separately,  he  may  sometimes  join  these  sep- 
arate wrongdoers  in  one  suit. 


MANDAMUS. 

In  these  suits  all  parties  interested  in  the  rights  to  be  enforced 
should  be  joined  as  plaintiffs.  As  defendant,  the  officer  whose  action 
it  is  desired  to  constrain  must  of  course  be  sued,  and  in  those  cases 
where  the  action  sought  to  be  compelled  would  directly  affect  the 
rights  or  claimed  rights  of  other  parties,  such  other  parties  should 
be  joined;  as  in  the  case  of  a  mandamus  against  a  county  surveyor  to 
compel  the  survey  of  a  tract  of  land  upon  which  a  location  is  sought 

"  Look  v.  Henderson,  4  Texas,  303;  Moore  v.  Janes,  6  Texas,  227;  Burden  v. 
Cross,  33  Texas,  686. 

48  Hooks  v.  Bramlette,  1  W.  &  W.  C.  C.,  sec.  867 ;  Hitter  v.  Hamilton,  4  Texas, 
327;  Lewis  v.  Klggs,  9  Texas,  165.  Contra:  Unger  v.  Anderson,  37  Texas,  550. 

40  See  authorities  on  Suits  for  Damages  to  Land,  supra. 

60  Hardy  v.  Broaddus,  35  Texas,  686;  Loftus  v.  Maxey,  73  Texas,  246,  US. 
W.,  272;  Giddings  v.  Baker,  80  Texas,  312,  16  S.  W.,  111. 


QUO    WAEKANTO.  201 

to  be  made,  if  there  are  adverse  claimants  to  the  land  they  must  be 
joined  as  parties  with  the  surveyor;  otherwise,  it  might  be  determined  in 
the  first  suit  that  the  land  was  vacant  and  he  might  be  compelled 
to  survey  it  for  the  plaintiff,  and  afterwards  parties  adversely  inter- 
ested might  institute  another  suit  and  obtain  a  different  verdict,  and 
compel  him  to  survey  the  land  for  them.51 


QUO  WARRANTO. 

The  State  alone  can  institute  proceedings  of  this  kind.  It  is  usually 
done  upon  the  relation  of  some  party  who  is  interested  in  the  matter 
to  be  brought  before  the  court,  but  the  State  alone  can  be  a  party  plain- 
tiff. It  acts  through  its  attorney  general,  district  or  county  attorney, 
as  the  case  may  be.  There  are  010  special  rules  with  reference  to  de- 
fendants.52 


JUDGMENTS. 

In  a  suit  to  set  aside  or  vacate  a  judgment,  it  is  the  general  rule 
that  all  persons  must  be  made  parties  who  were  parties  to  the  original 
proceedings.53  If,  however,  the  judgment  is  divisible,  it  will  suffice 
to  join  only  so  many  of  the  original  parties  as  were  interested  in  such 
part  of  the  judgment  as  is  sought  to  be  set  aside. 

The  same  is  true  of  suits  to  enjoin  the  execution  of  judgments  or  to 
revive  judgments.  In  suits  upon  a  judgment  as  an  original  cause  of 
action,  the  same  doctrines  as  to  joint  and  several  obligations  apply  as 
in  cases  on  contracts. 


OFFICERS  AND  OFFICIAL  BONDS. 

There  has  been  special  legislation  on  this  subject  as  follows.64 
"Art.   1205.     In  any  suit  brought  by  the  State  of  Texas,  or  any 
county  of  said  State,  against  any  officer  who  has  held  office  more  than 
one  term  and  has  given  more  than  one  official  bond,  the  sureties  on 

51  Smith  v.  Power,  2  Texas,  68 ;  Cullem  v.  Latimer,  4  Texas,  334 ;  Commissioner 
Land  Office  v.  Smith,  5  Texas,  484;  Watkins  v.  Kirchain,  10  Texas,  381;  Gaal  v. 
Townsend,  77  Texas,  465,  14  S.  W.,  365. 

52  Wright  v.  Allen,  2  Texas,  160. 

18  Duncan  v.  Bullock,  18  Texas,  544;  York  v.  Cartwright,  42  Texas,  142;  Wil- 
liams v.  Nolan,  58  Texas,  712;  Slaughter  v.  Owens,  60  Texas,  671. 

64  Rev.  Stats.  1895. 


202  JOINDEK,    NONJOINDER   AND   MISJOINDER   OF    PARTIES. 

each  and  all  of  such  bonds  may  be  joined  as  defendants  in  one  and 
the  same  suit,  whenever  it  is  alleged  in  the  petition  that  it  is  difficult 
to  determine  when  the  default  sued  for  occurred,  and  which  set  of 
sureties  on  such  official  bonds  is  liable  therefor. 

"Art.  1206.  In  any  suit  by  the  State  of  Texas  on  the  official  bond 
of  any  State  officer,  any  subordinate  officer  who  has  given  bond,  pay- 
able either  to  the  State  or  to  such  superior  officer,  to  cover  the  de- 
fault sued  for  or  any  part  thereof,  together  with  the  sureties  on  his  official 
bond,  may  be  joined  as  defendant  in  one  and  the  same  suit  with  such 
superior  officer  and  his  bondsmen,  whenever  it  is  alleged  in  the  peti- 
tion that  both  of  such  officers  are  liable  for  the  money  sued  for,  to  the 
end  that  all  equities  may  be  adjusted  between  them  in  one  suit. 

"Art.  1207.  Whenever  any  official  bond  is  made  payable  to  the 
State  of  Texas  or  any  officer  thereof,  and  a  recovery  thereon  is  au- 
thorized by  or  would  inure  to  the  benefit  of  parties  other  than  the 
State,  suit  may  be  instituted  on  such  bond  in  the  name  of  the  State 
alone  for  the  benefit  of  all  parties  entitled  to  recover  thereon." 

Except  as  affected  by  these  statutes,  parties  in  these  suits  are  regu- 
lated by  the  general  rules. 

In  suits  against  any  sheriff  or  constable,  or  a  deputy  of  either,  for 
damages  for  any  act  done  in  their  official  capacity,  the  sureties  on  their 
official  bonds  may  be  joined,  and  also  the  sureties  on  any  special  in- 
demnifying bond,  which  may  have  been  taken  by  such  officer  in  the 
particular  transaction  out  of  which  the  litigation  grows.55  It  is 
also  recognized  as  the  correct  practice  for  the  plaintiff  to  join  these 
sureties  in  the  first  instance.  The  amount  of  recovery  against  the 
official  bondsmen  is  limited  to  the  amount  of  the  official  bond,  as  they 
have  no  special  connection  with  the  alleged  wrong,  but  the  indemni- 
fying bondsmen  and  the  party  in  whose  behalf  and  at  whose  in- 
stance the  officer  acted  are  regarded  as  joint  tort-feasors  with  the 
officer  and  are  liable  for  the  actual  damage  to  the  full  extent  of  the 
proximate  injury. 


CARRIERS. 

By  legislative  act  passed  in  1895,56  construction  has  been  placed 
upon  certain  designated  contracts  by  common  carriers;  and  in  every 
contract  of  carriage,  the  option  is  given  to  a  shipper  who  has  sus- 
tained damage  anywhere  on  the  route  to  sue  any  one  of  such  carriers 
separately,  without  the  necessity  of  joining  the  others. 

55  Rev.  Stats.  1895,  art.  1204;  Cabell  v.  Shoe  Co.,  81  Texas,  104,  16  S.  W.,  811. 
64  Rev.  Stats.  1895,  arts.  331a;  331b. 


ACTION    FOR   INJURIES    RESULTING   IN   DEATH.  203 


ACTION  FOB  INJURIES  RESULTING  IN  DEATH. 

In  this  action  no  one  is  entitled  to  sue  except  the  parties  men- 
tioned in  the  statute;  these  are  the  parents,  husband,  wife,  and  child 
or  children  of  the  deceased,  or  the  administrator  or  executor  of 
the  estate  suing  for  the  benefit  of  these  statutory  beneficiaries. 
The  damages  are,  however,  to  be  apportioned  among  all  these 
persons  as  the  jury  may  determine.  All  or  any  one  of  the  parties 
may  bring  the  suit,  but  in  the  latter  case  it  must  appear  upon 
the  record  that  the  suit  is  brought  for  the  benefit  of  all.  If  any 
one  of  the  parties  has  settled  his  claim,  this  fact  must  be  alleged  by 
the  plaintiffs  as  an  excuse  for  not  joining  him,  and  it  must  be  proved 
upon  the  trial.  It  is  not  sufficient  to  file  affidavit  setting  up  such  fact 
in  response  to  a  motion  for  rehearing,  nor  will  the  fact  that  the  right 
of  one  claimant  was  barred  by  limitation  be  sufficient  excuse  for  not 
making  him  a  party.57 


HOW  OBJECTIONS  TO  NONJOINDER  OR  MISJOINDER  OP 
PARTIES  MAY  BE  AVAILED  OF. 

In  order  to  prevent  misunderstanding  of  the  decisions  on  this  subject, 
it  is  essential  to  keep  constantly  in  mind  the  difference : 

First. — Between  the  mis  joinder  and  nonjoinder  of  parties. 

Second. — Between  parties  necessary  to  decision  of  main  issues  and 
parties  necessary  merely  to  some   ancillary  issue. 

Third. — Between  parties  necessary  to  main  issue  and  those  proper 
to  it. 

Fourth. — Between  parties   necessary   to   ancillary   issues   and   those 
proper  to  them. 

Fifth. — Between  parties  plaintiff  and  defendant. 

Sixth. — Between  defects  apparent  on  the  face  of  the  plaintiff's  peti- 
tion and  defects  not  so  apparent. 

Seventh. — Between  pleas  in  abatement  and  demurrers  to  a  petition. 

Eighth. — Between  general   demurrers    and   special   exceptions. 

Ninth. — Between    defects   appearing   for  the  first   time   on   hearing 
the  evidence  and  those  appearing  sooner. 

Tenth. — Between  judgments  by  default  and  judgments  on  trial. 

Though  the  judges  seem  to  keep  these  differences  very  well  in  mind 
in  the  determination  of  cases,  they  sometimes  lose  sight  of  them  in 
writing  their  opinions. 
\ 

"Railway  Co.  v.  Spiker,  59  Texas,  437;  Railway  Co.  v.  Culberson,  68  Texas, 
664,  5  S.  W.,  820;  Railway  Co.  v.  Wilson,  85  Texas,  516,  22  S.  W.,  578. 


204  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PAETIES. 

\ 

Nonjoinder  of  Necessary  Parties. 

A  party  necessary  to  the  main  issue  in  the  case  is,  as  we  have  seen, 
one  without  whom  no  judgment  can  be  rendered  determining  the 
matter  in  controversy.  In  cases  of  nonjoinder,  if  a  party  necessary 
to  the  main  issue  is  omitted,  such  omission  is  fundamental,  and  will 
require  either  a  dismissal  of  the  suit  or  a  stay  of  proceedings  until 
such  party  can  be  brought  in.  This  is  the  rule  no  matter  when  or 
how  his  absence  may  become  apparent.58 

The  objection  of  nonjoinder  of  such  a  party  may  be  made  by  plea  in 
abatement,59  general  demurrer,  special  exception,60  objection  to  testi- 
mony, motion  for  new  trial,61  motion  in  arrest  of  judgment,  sug- 
gestion of  fundamental  error  on  appeal,62  or  otherwise,  whenever  it 
comes  to  the  knowledge  of  the  court  the  result  would  be  the  same,  either 
the  dismissal  or  stay  of  the  case. 

Nonjoinder  of  Proper  Parties. 

The  effect  of  the  failure  to  join  one  who  is  'not  a  necessary  but 
merely  a  proper  party  to  the  main  issue  in  the  case,  but  who  is  a  neces- 
sary party  to  some  ancillary  or  subsidiary  issue,  would  not  affect  the 
court's  power  to  adjudge  the  main  issue,  but  would  prevent  the  ad- 
judication of  the  subsidiary  matter.  If,  therefore,  it  was  desired  by 
the  party  sued  to  prevent  the  determination  of  the  main  issue  until 
such  ancillary  issue  were  also  determined,  he  would  be  compelled  to 
call  the  court's  attention  to  the  nonjoinder  of  such  party  in  due  time 
and  order  of  pleading.  This  would  be  by  plea  in  abatement,  if  the 
nonjoinder  did  not  appear  on  the  face  of  the  petition,  or  by  special 
exception  if  it  did  so  appear.  If  this  were  not  done  the  court  would 
proceed  to  hear  and  adjudicate  the  principal  issue,  but  would  refuse  to 
determine  the  subsidiary  one. 

Sometimes  the  facts  which  constitute  a  defect  of  parties  may  be 
taken  advantage  of  on  the  introduction  of  evidence  or  even  later  in  the 
proceedings.  These  are  in  almost,  if  not  in  every,  instance,  cases  in 
which  the  objection  consists  in  a  variance  between  the  allegations  in 
the  pleadings  and  the  evidence  offered.  For  instance,  a  suit  is  brought 
against  a  person  on  a  note,  described  as  having  been  executed  by  him. 

08  De  la  Vega  v.  League,  64  Texas,  205 ;  Ship  Channel  Co.  v.  Bruley,  45  Texas,  8. 

BSMay  v.  Slade,  24  Texas,  208;  State  v.  Goodnight,  70  Texas,  688,  US.  W., 
119. 

e°Kegans  v.  Allcorn,  9  Texas,  34;  Davis  v.  Willis,  47  Texas,  154. 

61  Ebell  v.  Bursinger,  70  Texas,  122,  8  S.  W.,  77. 

82  Hanner  v.  Summerhill,  7  Texas  Civ.  App.,  235,  26  S.  W.,  906. 


NONJOINDER   AND   MISJOINDEB,    HOW   AVAILED   OF.  205 

Here  no  defect  of  parties  would  appear  on  the  face  of  the  pleading;  for 
the  defendant  might  well  have  executed  just  such  a  note.  On  the  trial 
the  plaintiff  offers  in  evidence  the  joint  note  of  the  defendant  and 
another;  an  objection  to  the  note  on  ground  of  variance  would  be  fatal. 
The  defendant  may  anticipate  this  and  plead  in  abatement  the  non- 
joinder of  his  co-obligor,  if  he  desires;  or  he  may  wait  and  object  to 
the  introduction  of  the  evidence  because  of  the  variance.  Either  course 
would  be  fatal  to  the  plaintiff's  case,  but  would  leave  the  cause  of 
action  unaffected. 

The  proper  course  is  to  sue  both  parties,  or  to  sue  erne  of  them,  giving 
the  reasons  for  not  joining  the  other;  in  each  case  properly  describing 
the  instrument  as  the  joint  obligation  of  both  parties.  If  only  one  be 
sued,  the  instrument  being  properly  described,  the  failure  to  join  the 
other,  if  available  at  all,  which  is  extremely  doubtful,  must  be  presented 
by  plea  in  abatement  or  by  special  exception — otherwise  the  court  will  ren- 
der judgment  against  the  sole  defendant.  In  other  words,  if  the  in- 
strument be  properly  described,  the  failure  to  join  the  co-obligor  can 
not  be  availed  of  in  excluding  the  testimony. 


Misjoinder. 

The  effect  of  mis  joinder — that  is,  the  bringing  before  th'e  court  a 
party  who  has  no  such  connection  with  the  matters  in  litigation  as  to 
make  him  either  a  necessary  or  a  proper  party, — will  depend  upon  the 
circumstances  of  the  case.  If  he  is  a  plaintiff  and  is  not  alleged  to 
have  any  joint  right  or  interest,  but  is  brought  in  in  connection  with  some 
matter  improperly  claimed  to  be  pertinent  to  the  cause,  his  presence 
usually  affects  only  the  costs  of  the  case.  The  other  plaintiffs  will  re- 
cover, but  he  will  fail  and  will  have  to  pay  his  own  costs.  If,  how- 
ever, he  is  presented  in  the  pleadings  as  jointly  interested  with  the 
other  plaintiffs,  failure  to  establish  such  joint  right  will  be  fatal  to  the 
recovery  of  all  the  plaintiffs  alike.63 

If  he  is  a  defendant  and  the  suit  is  based  on  contract  alleged  to  be 
joint  between  him  and  his  codefendants,  failure  to  introduce  such 
joint  contract  will  prove  fatal,  if  objected  to  when  the  testimony  is 
offered,  or  it  may  be  even  at  later  stages  of  the  proceedings.  If  the 
suit  is  on  a  tort,  the  doctrine  of  variance  is  not  applied  between  joint 
and  several  wrongdoers,  and  the  plaintiff  can  recover  against  any 
number  of  the  alleged  wrongdoers  who  may  be  shown  to  bo  guilty,  even 
though  his  proof  fail  as  to  others  joined  with  them.64 

•"Stachely  v.  Pierce,  28  Texas,  328;  Ship  Channel  Co.  v.'Bruley,  45  Texas,  8. 
64  Navigation  Co.  v.  Dwyer,  29  Texas,  384 ;  Morill  v.  Hopkins,  36  Texas,  687. 


206  JOINDER,    NONJOINDER   AND   MISJOINDER   OF    PARTIES. 


NEW  PARTIES. 

Our  statutes  provide  for  the  making  of  new  parties  during  the 
progress  of  the  case.  This  may  be  done  at  the  request  of  those  al- 
ready either  plaintiffs  or  defendants.  Sometimes  this  is  done  by  one 
of  the  parties  to  meet  an  objection  of  nonjoinder  raised  by  the  other ; 
sometimes  it  is  done  voluntarily  to  enable  the  court  to  settle  more  sat- 
isfactorily than  it  otherwise  might  some  of  the  matters  presented  to  it. 
The  principles  that  apply  here  are  the  same  as  those  before  considered 
in  joining  causes  of  action  and  making  parties  in  the  first  instance,  and 
need  not  be  repeated.  The  statute  on  the  subject  is  as  follows :  "Be-^ 
fore  a  case  is  called  for  trial,  additional  parties,  may,  when  they  are! 
necessary  or  proper  parties  to  the  suit,  be  brought  in  by  proper  means 
either  by  plaintiff  or  defendant  upon  such  terms  as  the  court  may 
prescribe,  but  such  parties  shall  not  be  brought  in  at  such  a  time  or  in 
such  a  manner  as  to  delay  unreasonably  the  trial  of  the  case."65 

This  was  enacted  in  1879,  prior  to  which  time  the  matter  had  been 
left  to  the  courts,  without  any  express  statutory  provisions.66 

In  Baily  v.  Trammell,67  the  Supreme  Court,  through  Judge  Moore, 
says :  "Nor  do  we  know  of  any  rule  of  practice  by  which  a  defendant 
is  authorized  to  make  a  party  plaintiff  in  a  cause.  If  the  proper 
plaintiffs  are  'not  joined  in  the  action,  the  defendant  may  take  ad- 
vantage of  this  plea,  and  have  the  proper  parties  made  by  the  plain- 
tiff, or  cause  the  suit  to  be  dismissed;  or  in  some  cases  he  may  take 
advantage  of  a  defect  of  parties  on  the  trial.  But  the  defendant  has 
no  right  to  thrust  into  the  cause  a  third  person,  as  a  party  plaintiff, 
against  the  wishes  or  without  the  consent  of  the  original  plaintiff.  The 
action  of  the  court  ordering  Henry  Trammell  to  be  made  a  party 
plaintiff  was  for  this  reason  erroneous,  but  it  was  an  error  of  which 
>the  plaintiffs  in  error  can  not  complain.  If  it  is  necessary  for  the  pro- 
tection of  the  rights  of  a  defendant,  chat  a  person  or  persons  who 
have  a  joint  interest  with  the  plaintiffs  should  be  brought  before  the 
court,  he  may  unquestionably  cause  this  to  be  done,  but  in  such  case 
it  should  be  by  a  proceeding  in  the  nature  of  a  cross-action  or  bill 
against  the  plaintiff  and  such  third  parties.  Although  such  pro- 
ceeding would  be  treated  as  part  of  the  original  suit,  yet,  in  this 
branch  of  litigation,  the  original  defendant  has  become  the  actor, 
and  has.  the  rights  together  with  the  responsibilities  of  a  plaintiff, 
and  the  other  parties  occupy  the  position  and  have  the  privileges  of 
defendants." 

65  Rev.  Stats.  1895,  art.  1208. 

66  Kegans  v.  Allcorn,  9  Texas,  34. 

67  27  Texas,  326. 


NEW   PAETIE8.  207 

The  statute  does  not  change  this  rule  nor  give  to  any  one  the  power 
to  compel  another  to  become  an  actor  in  a  law  suit.  He  may  be 
brought  in  as  a  defendant;  or  the  rights  of  others  interested  with 
him  may  be  lost  by  his  failure  to  come  in ;  but  he  can  not  be  compelled 
"by  the  defendant  to  become  a  plaintiff.  Whether  one  plaintiff  can 
compel  another  person  interested  with  him  to  permit  the  use  of  his 
name  against  his  will  seems  to  be  an  open  question  at  common  law, 
and  I  have  found  no  Texas  case  on  the  subject.  Under  the  statute  the 
right  to  make  new  parties  must  be  exercised  "before  the  case  is  called 
for  trial,"  and  the  courts  have  enforced  this  condition.68  If  the 
new  party  is  a  necessary  plaintiff,  he  can,  if  he  wishes,  come  into  the 
case  by  the  plaintiffs  taking  leave  to  amend  their  petition  and  joining 
with  him  in  an  amended  petition  or,  if  he  will  not  consent  to  become 
a  plaintiff,  he  may  be  joined  as  defendant  and  have  his  rights  con- 
cluded by  the  judgment.  In  case  he  is  co-obligee  with  the  plaintiffs 
in  a  joint  contract,  it  is  not  settled  whether  or  not  he  can  be  brought 
in  as  a  defendant,  or  made  an  involuntary  plaintiff,  though  under  our 
system  it  seems  either  course  might  be  proper. 

New  parties  defendant  are  made  by  the  plaintiff  by  taking  leave 
to  amend  and  filing  a  pleading  suing  the  old  and  new  parties  as  de- 
fendants, making  proper  allegations  to  show  the  liability  or  interest  of 
each.  New  parties  defendant  are  made  by  the  defendant,  either  by 
joining  them  in  the  original  answer,  or  if  that  has  been  filed,  by  taking 
leave  to  amend  and  filing  an  amended  original  answer  showing  the 
connection  of  each  new  party  with  the  case  and  asking  for  appropriate 
relief  against  him.  or  for  the  proper  action  of  the  court  concerning  him 
and  his  interests. 

Whether  a  new  party  is  made  by  the  action  of  either  the  plaintiff) 
or  the  defendant,  he  is  entitled  to  citation  and  notice  in  the  same 
manner  as  the  original  defendant  and  for  the  same  length  of  time. 

The  statutes  expressly  provide  for  making  the  warrantor  of  the 
title  of  defendant  sued  in  action  of  trespass  to  try  title  a  party  to  the 
suit.69  It  has  been  held  that  the  plaintiff  in  such  a  suit  can  also 
bring  in  his  warrantor.70  The  real  owner  of  the  land  may  also  be  made 
.a  defendant.71 


83  Reagan  v.  Copeland,  78  Texas,  555,  J4  S.  W.,  1031. 

68  Rev.  Stats.   1895,  art.  5252;   Johns  v.  Hardin,  81  Texas,  40,  16  S.  W-  623; 
Prey  v.  Railway  Co.,  86  Texas,  465,  25  S.  W.,  609. 

n  McCreary  v.  Douglass,  5  Texas  Civ.  App.,  492. 
nRev.  Stats.  1895,  art.  5252. 


208  JOINDER,    NONJOINDER   AND   MISJOINDER   OF   PARTIES. 


INTBRVENORS. 

Persons  who  have  the  proper  connection  with  the  subject  matter 
of  the  suit  but  have  not  been  joined,  may  come  voluntarily  into  the 
case  and  submit  themselves  and  their  rights  to  the  court  for  adjudica- 
tion. Just  what  interest  in  the  subject  matter  of  the  suit  or  in  the 
thing  litigated  about  will  entitle  one  to  do  this  is  not  so  clearly  settled 
as  to  make  the  question  always  easy  of  determination.  Some  aid  will 
be  derived  by  keeping  in  mind  the  difference  between  the  subject  mat- 
ter proper  of  a  suit, — that  is,  the  rights  claimed,  the  wrongs  com- 
plained of,  and  the  remedies  sought  on  the  one  hand, — and  the  things 
in  or  about  which  these  rights  and  wrongs  for  which  remedies  are  sought 
are  said  to  exist  on  the  other.  If  the  interest  of  the  proposed  inter- 
venor  is  in  the  subject  matter,  the  rule  is  almost  universally  recog- 
nized that  he  may  intervene  at  an}''  time,  provided  the  intervention 
does  not  delay  the  suit.  If  he  is  interested  merely  in  the  thing  and  not 
in  the  particular  rights,  wrongs,  and  remedies  which  are  being  liti- 
gated, his  right  to  intervene  will  be  determined  by  the  probable  affect 
of  the  litigation  on  his  asserted  rights  in  the  thing.  If  it  seem  likely 
that  such  rights  will  be  affected  prejudicially,  he  may  intervene ;  if  not,, 
he  will  not  be  permitted  to  do  so.72 

The  authorities  seem  to  support  the  following  rules  as  to  the  right 
to  intervene. 

First. — Whenever  the  person  seeking  to  intervene  is  a  necessary  party 
to  the  main  issue  in  the  case,  he  may  intervene  at  any  time. 

Second. — Whenever  he  is  a  proper  party  to  the  main  issue  in  the 
case,  he  may  intervene,  unless  he  has  been  guilty  of  laches  in  assert- 
ing his  rights,  and  his  intervention  at  the  time  it  is  proposed  would 
unduly  delay  or  otherwise  prejudicially  affect  the  litigation  between 
the  original  parties. 

Third. — Whenever  he  is  a  proper  party  to  the  main  issue  and  a 
necessary  party  to  some  subordinate  issue  which  the  parties  are  seek- 
ing to  determine,  he  may  intervene  at  any  time  while  such  subordinate 
issue  is  still  pending  and  before  the  trial  has  begun.  If  upon  his  sug- 
gestion of  intervention,  the  parties  should  abandon  the  issue  as  to  which 
he  was  a  necessary  party,  he  would  then  fall  under  rule  second  above 
and  his  rights  would  be  determined  thereby. 

Fourth. — If  he  is  not  in  any  way  interested  in  the  rights  asserted 
by  the  plaintiff,  nor  in  any  way  responsible  for  the  wrong& 
charged  against  the  defendant,  but  asserts  some  claim  upon  or  title 
to  the  thing  about  which  the  litigation  is  pending,  his  right  to  in- 

n  For  general  discussion  see  Whitman  v.  Willis,  51  Texas,  421 ;  Noyes  v.  Brown,. 
75  Texas,  461,  13  S.  W.,  36;  Stansell  v.  Fleming,  81  Texas,  297,  26  S.  W.,  1033. 


INTERVENORS.  209 

tervene  will  depend  upon  the  nature  of  the  litigation  and  of  his  as- 
serted rights  in  the  thing.  Unless  these  are  such  that  the  prosecu- 
tion of  the  suit,  or  judgment  sought,  or  the  enforcement  of  such  judg- 
ment will  injuriously  affect  his  right  in  the  thing  or  his  enjoyment  of 
it,  he  can  not  intervene  at  all.  If,  however,  he  would  be  prejudicially 
affected  by  any  one  of  these,  his  privilege  of  intervention  is  within 
the  sound  discretion  of  the  court;  if  upon  a  consideration  of  all  the 
facts  alleged,  it  is  apparent  that  to  deny  him  the  privilege  would  be 
injurious  to  him  and  that  his  coming  in  would  not  be  prejudicial  to  the 
litigants,  he  will  be  permitted  to  intervene ;  if  his  coming  in  would 
delay  the  suit  or  otherwise  interfere  with  the  rights  of  the  present 
parties,  he  will  not  be  permitted  to  come  in. 


Manner  of  Intervening. 

The  person  desiring  to  intervene  must  prepare  and  present  to  the 
court  an  appropriate  pleading,  setting  out  his  interests  in  the  suit  and 
his  reasons  for  intervening,  accompanied  by  a  motion  to  be  allowed 
to  intervene  and  file  the  pleading.73  This  motion  should  be  in  writing, 
but  is  frequently  oral. 

The  pleading  will  be  either  a  petition  or  an  answer  according  to  the 
circumstances  of  the  case.  If  the  party  has  mistaken  his  position  on 
the  docket  and  prepared  one  pleading  when  it  should  have  been  the 
other,  the  court  may  still  look  to  the  allegations  of  the  pleading  for 
the  purpose  of  passing  upon  the  motion  to  be  allowed  to  intervene, 
and  if  they  are  found  sufficient  for  that  purpose  the  motion  will  be 
granted,  the  court,  in  its  order,  fixing  the  position  of  the  parties  and 
requring  pleadings  to  be  filed  conformable  thereto.  The  order  of  the 
court  granting  leave  to  intervene  is  notice  of  the  intevention  to  all  parties 
then  before  the  court.74 

The  filing  of  the  motion  is  usually  considered  sufficient  notice  of  in- 
tervention to  all  parties  actually  before  the  court.  If,  however,  any 
party  is  not  actually  before  the  court  at  the  time,  he  must  be  notified 
or  not,  as  the  circumstances  render  proper.  If  the  intervenor  asserts 
rights  adverse  to  those  of  such  party  and  seeks  relief  against  him, 
he  must  be  duly  cited  as  in  case  of  other  defendants;  if  the  interests 
of  the  intervenor  are  not  adverse  and  no  relief  is  sought  against  the 
absent  party,  no  notice  is  necessary.  The  intervenor  must  take  the 
case  as  he  finds  it.  He  can  not  object  to  the  reading  of  depositions 

'"Eccles  v.  Hill,  13  Texas,  67;  Caldwell  v.  Fraim,  32  Texas,  325;  Ragland  v. 
Wysrock,  61  Texas,  397. 

'"  Bryan  v.  Lund,  25  Texas,  98 ;  Fleming  v.  Seeligson,  57  Texas,  533. 
14 — Pleading 


210  JOINDER,    NONJOINDER   AND   MIS  JOINDER   OF    PARTIES. 

previously  taken  because  he  had  no  opportunity  to  cross-examine.75 
All  previous  orders  and  rulings  are  as  binding  on  him  as  if  he  had 
been  before  the  court  when  they  were  made.  After  a  proper  interven- 
tion, the  rights  of  the  intervenor  can  not  be  destroyed  by  a  dismissal 
of  his  case  by  the  plaintiff  or  by  a  settlement  between  the  the  plaintiff 
and  defendant.  Of  course  the  intervenor  can  not  prevent  such  action 
by  the  parties,  but  he  can  insist  upon  a  trial  and  hearing  all  issues  pre- 
sented by  him  as  the  basis  of  affirmative  relief,  just  as  any  other  plaintiff, 
or  a  defendant  presenting  a  cross  action  might.76 


Position  of  Intervenor  in  the  Suit. 

• 

The  position  of  the  intervenor  in  the  suit  is  determined  by  the 
court  in  accordance  with  the  particular  facts.  If  he  is  an  actor  seeking  to 
enforce  rights  and  to  obtain  affirmative  relief,  he  will  be  a  plaintiff 
and  subject  to  all  the  rules  of  practice  governing  plaintiffs.  His 
interests  may  be  consistent  with  those  of  the  original  plaintiffs,  as  in 
case  of  suit  by  one  cotenant  of  land  for  the  benefit  of  all  the  co-owners, 
where  the  other  co-owners  subsequently  intervene.  Here  the  parties 
would  co-operate  just  as  if  all  had  originally  brought  suit.  Or  his 
interests  may  be  averse  to  those  of  the  original  plaintiffs, — that  is,  he 
may  assert  some  interest  in  the  matter  being  litigated  adverse  to  the 
interests  of  the  original  plaintiffs  and  at  the  same  time  adverse  to  .those 
of  the  defendants.  An  illustration  of  this  is  seen  in  a  suit  by  an 
alleged  pledgee  of  a  promissory  note,  seeking  to  enforce  payment  from 
the  debtor,  where  the  alleged  pledgor  intervenes,  denying  the  pledge 
and  seeking  a  judgment  against  the  defendant.  Here  the  intervenor  is 
interested  adversely  to  both  plaintiff  and  defendant.  Again,  the  interests 
of  the  intervenor  may  be  identical  with  those  of  the  original  defend- 
ants, as  in  case  of  trespass  to  try  title  brought  against  the  tenant  in 
possession  and  subsequent  intervention  by  the  landlord. 

Each  case  is  to  be  determined  by  its  own  facts.  It  is  not  material 
by  what  name  the  intervenor  is  designated;  so  far  as  he  sets  up  lights 
in  himself  and  seeks  affirmative  relief,  the  courts  will  apply  to  him  the 
rules  governing  plaintiffs;  so  far  as  he  simply  resists  the  alleged 
rights  of  others,  he  will  be  governed  by  rules  applicable  to  defendants. 

75  Rainbolt  v.  March,  52  Texas,  250. 

78  State  v.  Loan  &  Trust  Co.,  81  Texas,  546,  17  S.  W.,  60. 


GENERAL   PRINCIPLES.  211 


CHAPTEE  X. 

VENUE. 
GENERAL  PRINCIPLES. 

Venue  means  locality  or  neighborhood,  and  is  used  in  this  sense  in 
several  different  connections  in  the  law.  It  originally  indicated  the 
neighborhood  and  then  the  county  from  which  the  jury  was  to  be 
taken  to  try  a  case.  In  early  times  the  competency  of  jurors  turned 
upon  their  acquaintance  with  the  case — just  the  reverse  of  the  idea 
which  now  obtains.  The  law  undertook  to  get  upon  the  panel  those 
persons  most  familiar  with  the  transaction  to  be  investigated.  Under 
these  circumstances.,  the  place  of  the  trial  was  determined4  by  the  con- 
venience of  the  persons  so  selected.  This  principle  no  longer  applies, 
and  now  the  effort  of  the  law  is  to  obtain  jurors  who  are  entirely  un- 
aquainted  with  the  subject  matter  of  the  litigation,  and  whose  con- 
clusions and  verdict  will  be  based  exclusively  upon  the  testimony  of 
the  witnesses.  The  fact  that  any  person  is  a  witness  or  has  informa- 
tion qualifying  him  to  be  a  witness  in  the  case,  or  has  formed  or  ex- 
pressed an  opinion  upon  the  matter  of  the  suit,  is  ground  for  his 
challenge.  Still  the  term  venue  is  used  to  indicate  the  locality  or 
county  in  which  a  trial  may  be  forced;  that  is,  the  county  in  which  the 
plaintiff  has  the  legal  right  to  institute  and  maintain  his  suit,  notwith- 
standing the  defendant's  objections. 

Venue  must  be  distinguished  from  territorial  jurisdiction  proper; 
the  former  has  to  do  with  privileges  of  the  parties;  the  latter  with  the 
potential  jurisdiction  of  the  court.  If  the  sovereign  should,  in  divid- 
ing jurisdiction  among  the  several  tribunals  created  by  it,  do  so  upon  the 
basis  of  locality,  and  should  give  to  each  of  its  courts  power  only  to 
hear  suits  involving  causes  of  action  arising  within  certain  territory, 
or  in  which  persons  resident  within  certain  territory  are  parties,  or  in 
which  only  questions  concerning  things  situated  within  certain  territory 
are  at  issue,  the  potential  jurisdiction  of  such  courts  would  depend 
upon  locality;  and  consent  of  parties  could  give  no  power  or  authority 
to  any  such  court  to  try  a  case  not  within  the  territory  specified  by  law. 
Venue  is  very  different;  it  relates  exclusively  to  the  locality  within 
which  the  active  jurisdiction  of  the  court  may  be  exercised  over  the 
defendant  against  his  will.  If  the  sovereign  creates  a  number  of  dif- 
ferent courts  of  concurrent  potential  jurisdiction,  and  then  for  conven- 
ience of  the  litigants  or  from  other  considerations  of  public  policy  se- 
lects from  among  these  courts  one  or  more  which  shall  have  preference 


212  VENUE. 

in  the  exercise  of  the  jurisdiction  conferred,  and  in  which  alone  unwill- 
ing defendants  can  be  compelled  to  litigate  their  rights,  basing  the  se- 
lection on  the  location  of  the  court  selected,  this  would  fix  the  venue 
of  such  suits  in  such  selected  courts.  It  would  not,  however,  affect 
the  potential  jurisdiction  of  the  other  courts  not  thus  selected.  It 
would  be  very  inconvenient  to  have  every  defendant  subject  to  suit  in 
any  court  anywhere  in  the  State,  without  allowing  him  any  choice 
in  the  premises;  and  the  law  has  determined  that  in  most  instances 
suits  can  be  instituted  and  maintained  in  only  one  court,  unless  he 
shall  consent  expressly  or  impliedly  to  be  sued  in  another. 


GENERAL  POLICY  OF  OUR  STATUTES. 

In  almost  every  instance,  though  not  in  all,  venue  is  fixed  by  statute. 
The  first  act  of  the  Eepublic1  on  this  subject,  in  its  fifth  section,  an- 
nounced the  rule  which  has  ever  since  obtained.  "No  person  shall  be 
sued  out  of  the  county  in  which  he  may  reside;"  and  followed  this 
with  nine  exceptions.  These  exceptions  havfe  all  been  retained — 
some  of  them  with  material  enlargement  of  their  scope;  and  numerous 
others  have  been  added,  so  that  under  our  present  statute  we  have 
twenty-six.  Several  laws  on  other  subjects  make  provision  for  venue 
of  suits  referred  to  in  them;  and  the  last  section  in  the  present  statute 
enacts  that,  in  all  such  cases,  the  provisions  of  the  particular  law  shall 
control.  The  first  amendment  of  the  act  of  1836,  made  in  1846,  was 
entitled,  "An  act  to  regulate  proceedings  in  the  district  courts."2  This 
retained  the  same  general  policy,  and  increased  the  exceptions  to  eleven. 
The  next  act  was  passed  in  1863. 3  This  added  no  new  exceptions,  but 
enlarged  several  of  those  existing.  Afterward  several  laws  were  passed 
from  time  to  time  fixing  venue  in  specified  cases. 

In  1879  the  codifiers  took  up  the  whole  subject,  revised  and  com- 
bined all  the  acts,  materially  changed  the  language  of  a  number  of  the 
sections,  and  added  eleven  other  exceptions.4  Again  acts  regarding 
particular  kinds  of  cases  were  passed  from  time  to  time.  In  the  re- 
vision of  1895,  the  statute  was  put  in  its  present  form.  Several 
changes  were  made  in  the  language  of  Act  of  1879,  and  three  new 
sections  were  added.5 

1  An  Act  Establishing  the  Jurisdiction  and  Powers  of  the  District  Court,  Ap- 
proved Dec.  22,  1836;  Laws  First  Con.,  p.  200;  Laws  of  Texas,  Gammel,  vol. 
1,  1258. 

-Laws  of  1846,  363;  Hart.  Dig.,  art.  667;  0.  &  W.  Dig.,  art.  401;  Laws  of 
Texas,  Gammel,  1669. 

3  Laws  1863,  10;  Pasch.  Dig.,  art.  1623;  Laws  of  Texas,  Gammel,  vol.  5,  664. 
4J!ev.  Stats.  1879,  art.  1198. 
*  Rev.  Stats.  1895,  art.  1194. 


GENERAL   RULES   OP    CONSTRUCTION    OF   THE    STATUTE.  213 

As  previously  stated,  the  general  policy  of  the  statute  is,  that  every 
inhabitant  of  the  State  should  be  sued  in  the  county  of  his  residence; 
and  this  is  the  rule  in  all  cases  against  such  persons  in  which  no  ex- 
press provision  is  made  to  the  contrary. 

The  statute  makes  no  provisions  with  reference  to  ordinary  suits  in 
which  all  parties  are  nonresidents  of  the  State,  and  in  such  cases  the 
general  doctrines  of  the  common  law  and  of  comity  between  different 
nations  must  be  looked  to  for  guidance.  In  Pegram  v.  Owens,  decided 
in  1885,6  it  was  held  that  in  a  transitory  action,  with  reference  to  a  sub- 
ject matter  over  which  potential  jurisdiction  had  been  granted  to  the 
district  courts,  and  all  parties  to  which  were  nonresidents  of  the  State, 
jurisdiction  could  be  exercised  by  the  district  court  of  any  county  in 
which  service  could  be  obtained  on  the  defendant,  or  where  he  might 
appear  and  waive  service.7 

From  this  case  it  is  clear  that  where  potential  jurisdiction  is  granted 
to  a  class  of  courts  in  transitory  actions,  and  venue  is  not  fixed  in  any 
one  of  such  courts,  suit  may  be  maintained  in  any  of  such  courts  by 
which  active  jurisdiction  over  the  person  can  be  acquired.  If  the 
case  is  local  in  its  nature,  it  would  seem  that  this  difficulty  would 
hardly  arise ;  for  if  its  location  were  out  of  Texas,  our  courts  would 
have  no  jurisdiction;  if  it  were  within  the  State,  then  it  would  fall  un- 
der some  of  the  provisions  of  the  statute. 


GENERAL  RULES  OP  CONSTRUCTION   OP  THE  STATUTE. 

It  has  been  held  that  the  general  purpose  of  our  statute  with  refer- 
ence to  venue  is  to  secure  to  the  inhabitants  of  the  State  the  privilege 
of  being  sued  in  the  counties  of  their  domicile,  and  that,  therefore,  the 
statute  will  be  liberally  construed  to  effect  this  purpose.  In  other  re- 
gards it  is  to  be  construed  as  other  statutes.8 

The  language  of  the  statute  announcing  the  general  rule  as  to  venue 
and  of  many  of  the  sections  providing  exceptions  would,  ordinarily 
speaking,  be  regarded  as  mandatory;  but  the  disposition  of  the  authori- 
ties is  to  consider  it  as  directory  and  its  provisions  as  merely  creating 
a  privilege  in  the  defendant.  Even  in  those  clauses  in  which  the 
requirement  is  positive,  using  the  phrase  "must  be  brought"  in  a  cer- 
tain county,  the  courts  have  held,  and  properly,  that  this  language 
does  not  affect  the  jurisdiction  of  other  courts,  and  that  unless  the  de- 

6  64  Texas,  475. 

7  See  also  Ward  v.  Lathrop,  11  Texas,  287;    Ward  v.  Lathrop,  4  Texas,  180; 
McMullen  v.  Guest,  6  Texas,  279;  Campbell  v.  Willson,  6  Texas,  391;  Tulane  v. 
McKee,  10  Texas,  336. 

8  Finch   v.    Edmondson,    9    Texas,    504. 


214  VENUE. 

fendant  sets  up  his  privilege  of  being  sued  in  the  county  designated 
by  proper  plea,  it  is  waived.9 

Different  forms  of  expression  are  used  in  different  clauses  of  the 
statute;  in  some  it  is  said  that  the  suit  must  be  brought  in  a  certain 
county;  in  others,  that  it  may  be  brought  in  any  one  of  several 
counties;  furthermore  suits  not  infrequently  arise  in  which  different 
sections  of  the  statute  apply.  The  rule  seems  to  be  that  if  the  statute 
provides  that  a  certain  kind  of  suit  must  be  brought  in  a  certain  county, 
the  defendant  can  by  proper  plea  compel  the  plaintiff  to  sue  in  the 
designated  county;  but  where  the  statute  gives  the  plaintiff  the  right 
to  choose  between  several  counties,  the  defendant  can  not  interfere  with 
the  selection  the  plaintiff  may  make.10 

Certain  sections  of  the  statute  provide  that  suits  against  specified 
classes  of  defendants  may  be  brought  in  designated  counties,  and  other 
sections  that  suits  of  specified  kinds  may  be  brought  in  designated 
counties.  It  not  infrequently  happens  that  a  defendant  coming  within 
the  former  sections  is  sued  in  a  case  falling  within  the  latter.  In  such 
conditions  the  practice  does  not  seem  to  be  settled. 

The  Supreme  Court  has  held  that  the  venue  may  be  laid  in  either 
county  which  the  plaintiff  may  elect,11  and  the  Court  of  Appeals  at 
Fort  Worth  has  held  that  the  defendant  may,  by  setting  up  his  privi- 
lege at  the  proper  time,  compel  the  plaintiff  to  litigate  in  the  county 
designated  in  the  sections  regarding  the  kinds  of  suits.12 


GENERAL  RULE  AS  TO  VENUE. 

The  first  clause  of  the  present  statute  is  in  these  words :  "No  per- 
son who  is  an  inhabitant  of  this  State  shall  be  sued  out  of  the  county 
where  he  has  his  domicile."  As  stated  above,  this  language  seems  to 
be  mandatory,  but  it  is  not  so  construed,  and  is  held  merely  to  confer 
a  privilege  upon  the  defendant  to  be  sued  in  the  county  in  which  he 
resides,  and  that  this  privilege  may  be  waived  by  him,  either  affirma- 
tively by  express  agreement,  or  negatively  by  failing  to  assert  his  right 
at  proper  time. 

The  word  person  includes  both  natural  and  artificial  persons.  The 
words  inhabitants  and  domicile  have  been  construed  in  a  liberal  rather 
than  a  technical  sense;  the  latter  has  been  held  in  several  cases  to  be 

•Ryan  v.  Jackson,  11  Texas,  400;  Morris  v.  Runnels,  12  Texas,  175;  Cavanaugh 
v.  Peterson,  47  Texas,  206;  De  la  Vega  v.  League,  64  Texas,  205;  Bonner  v. 
Hearne,  75  Texas,  247,  12  S.  W.,  38. 

10  Carro  v.  Carro,  60  Texas,  395. 

11  Railway  Co.  v.  Home,  69  Texas,  646,  9  S.  W.,  440. 
"Railway  Co.  v.  Jenkins,  29  S.  W.,  1113. 


EXCEPTIONS    TO   KULE.  215 

equivalent  to  residence,  so  that  the  nice   distinctions  between  those 
terms  do  not  apply  in  this  connection.13 

Venue  is  fixed  by  the  defendant's  residence  at  the  time  the  suit  is 
instituted;  not  at  the  time  of  service  or  of  trial.14  When  it  is  doubtful 
in  which  of  two  counties  the  defendant  resides,  he  may  be  sued  in 
either.15  If,  however,  the  defendant  has  changed  his  residence  and 
the  removal  is  completed  at  the  time  of  the  institution  of  the  suit,  he 
can  not  be  compelled  to  litigate  in  the  county  in  which  he  formerly  re- 
sided.16 


EXCEPTIONS  TO  RULE. 
Suits  Against  Married  Women. 

The  first  exception  made  in  the  statute  is  to  the  effect  that  where 
the  defendant  is  a  married  woman  she  may  be  sued  in  the  county  in 
which  her  husband  has  his  domicile.  This  statute  follows  the  general 
doctrine  of  the  law  that  the  domicile  of  the  wife  is  determined  by  that 
of  her  husband. 

Against  Transient  Persons. 

The  second  exception  is:  "Where  the  defendant  is  a  transient  per- 
son, in  which  case  he  may  be  sued  in  any  county  in  which  he  may  be 
found." 

The  term  transient  person  has  not  been  frequently  defined  by  the 
courts.  The  Supreme  Court  of  Vermont,  in  Middlebury  v.  Waltham.17 
says  that  a  transient  person  is  "Not  exactly  a  person  on  a  journey  from 
one  known  place  to  another,  but  rather  a  wanderer  ever  on  the  tramp." 
Mr.  Sayles,  in  his  work  on  Practice,18  says  :  "A  transient  person  is  one 
who  has  no  fixed  residence  within  the  State;  as  every  person  in  legal 
contemplation  has  a  domicile  somewhere  and  can  have  but  one  at  any 
given  time,  it  would  seem  to  follow  that  a  transient  person  is  a  non- 

13  Tucker  v.  Anderson,  27  Texas,  281;   Brown  v.  Bouldin,  18  Texas,  433;  Gid- 
dings  v.  Steele,  28  Texas,  751;  O'Conner  v.  Cook,  26  S.  W.,  1114;  Ex  Parte  Blu- 
mer,  27  Texas,  738;   Russell  v.  Randolph,  11  Texas,  465;   State  v.  Skidmore,  5 
Texas,  469. 

14  Whiting  v.   Briscoe,   Dallam,  540. 

15  Faires  v.  Young,  69  Texas,  483,  6  S.  W.,  800. 

16  Faires  v.  Young,  supra;  Walker  v.  Walker,  22  Texas,  331. 
1T6  Ver.,  203. 

"Vol.  I,  sec.  222. 


216  VENUE. 

resident  of  the  State  temporarily  residing  within  the  State.  He  is  not 
a  person  whose  residence  is  simply  unknown  to  the  plaintiff."  It  is 
clear  that  a  nonresident  of  the  State  temporarily  residing  within  the 
State 'would  be  a  transient  person,  but  it  is  not  equally  clear  that 
such  non-residents  include  all  persons  who  are  transients,  within  the 
meaning  of  this  law.  If  domicile  in  the  first  clause  of  this  article 
means  residence,  as  has  been  held  by  the  courts,  and  the  general  pur- 
pose of  the  law  is  to  fix  the  venue  of  suits  in  the  counties  where  the 
defendants  reside,  it  would  seem  to  follow  that  residence,  rather 
than  domicile  in  the  technical  use  of  that  term,  was  the  thought  in  the 
legislative  mind;  and  that  this  exception  was  intended  to  cover  all 
cases  in  which  the  defendant  is  within  the  State,  but  has  no  fixed  resi- 
dence therein,  whether  or  not  he  had  such  residence  elsewhere, — the 
intention  being  to  prevent  the  attempted  privilege  of  the  defendant  from 
working  real  hardship  upon  the  plaintiff  by  requiring  him  to  determine 
in  advance  where  the  residence  of  the  defendant  is,  when  his  conduct 
had  been  and  was  still  such  as  to  render  this  difficult  of  solution.  It 
would  seem,  therefore,  that  a  transient  person  is  one  who  has  neither 
domicile  nor  fixed  residence  within  this  State,  or  who  is  so  migratory 
in  his  habits  of  life  that  it  is  difficult  to  determine  where  his  actual 
residence  is.  It  would  not  ordinarily  tend  to  the  inconvenience  of 
such  an  one  to  sue  him  at  any  place  where  the  plaintiff  might  con- 
clude he  resided;  and  therefore,  making  him  liable  to  suit  wherever 
he  may  be  found  does  not  interfere  with  the  general  policy  of  the 
statute  as  to  convenience  of  the  defendant. 


Against  Nonresident   Defendants  and    Defendants  "Whose  Resi- 
dence is  Unknown. 

The  third  section  of  the  statute  is.  "Where  the  defendants  or  all  of 
several  defendants  reside  without  the  State,  or  where  the  residence  of 
the  defendants  is  unknown,  in  which  case  the  suit  may  be  brought  in  the 
county  where  the  plaintiff  resides."  It  will  be  observed  that  this  sec- 
tion deals  with  two  classes  of  persons, — those  whose  residence  is 
known  but  who  are  without  the  State  of  Texas;  second,  those  whose 
residence  is  unknown  whether  it  be  within  or  without  the  State. 

As  to  the  first  of  these  classes  this  section  can  hardly  be  called  an 
exception  to  the  general  rule  announced  in  the  first  clause  of  the 
statute  with  regard  to  inhabitants  of  this  State,  but  as  it  is  so  dealt  with 
in  the  statute  it  is  more  convenient  to  adopt  that  method  of  treatment. 

It  will  be  noted  that  in  each  of  these  cases  venue  is  fixed  by  the  resi- 
dence of  the  plaintiff. 

In  cases  against  nonresidents  who  are  temporarily  within  the  State 
and  are  duly  served,  or  who  voluntarily  appear  whether  within  the 


EXCEPTIONS   TO   RULE.  217 

State  or  not,  this  clause  is  operative;  but  if  the  defendant  be  a  non- 
resident and  actually  without  the  State  and  declines  to  accept  service 
or  otherwise  enter  an  appearance,  and  has  no  property  in  the  State, 
the  statute  is  without  force,  as  there  would  be  no  way  in  which  to 
obtain  service  necessary  to  a  personal  action  and  the  circumstances 
would  not  admit  of  a  proceeding  in  rem  or  quasi  in  rem.  If  the  de- 
fendant has  property  within  the  State,  a  proceeding  quasi  in  rem  may 
be  brought,  and  the  property  be  subjected  to  the  jurisdiction  of  the 
court  by  taking  it  into  the  custody  of  the  court.  In  such  cases,  venue 
could  be  fixed  by  this  statute,  though  it  is  usual  for  the  venue  to  be  laid 
in  that  county  in  which  the  property  or  a  part  of  it  is  situated.19 

As  to  the  second  class,  defendants  residing  in  this  State  and  sub- 
jects to  its  laws,  but  whose  residences  are  unknown  to  the  plaintiff, 
the  statute  is  effective,  and  such  persons  may  be  sued  in  the  county 
in  which  the  plaintiff  resides.  .  At  an  early  date  it  was  held  that  if  the 
defendant's  residence  was  unknown  to  the  plaintiff  at  the  time  the 
suit  was  instituted,  his  right  to  sue  in  the  county  of  his  own  residence 
would  not  be  defeated  by  his  subsequently  obtaining  information  as 
to  where  the  defendant  resided.20 

In  a  late  case21  the  Court  of  Civil  Appeals  for  the  Fifth  District 
holds  that  in  a  suit  against  a  defendant  whose  residence  is  unknown, 
where  service  is  obtained  by  publication  and  the  defendant  enters  an 
appearance  and  pleads  in  abatement  that  at  the  date  the  suit  was  in- 
stituted he  resided  in  another  county  within  the  State  of  Texas,  this 
will  not  defeat  the  plaintiff's  privilege  to  sue  him  as  one  whose  resi- 
dence is  unknown,  unless  the  defendant  proves  that  in  fact  he  did  live 
at  the  place  designated  in  his  plea  and  that  the  plaintiff  did  realty 
know  the  place  of  his  residence  at  the  time  the  suit  was  brought.  Con- 
sideration will  be  given  to  this  case  when  we  take  up  the  subject  of 
proper  practice  in  these  matters. 


Against  Two  or  More  Defendants  Residing  in  Different  Counties. 

The  fourth  exception  is  in  these  words :  "Where  there  are  two  or  more 
defendants  residing  in  different  counties,  in  which  case  the  suit  may  be 
brought  in  any  county  where  any  one  of  the  defendants  resides."  This 
is  but  a  continuation  of  the  policy  announced  in  the  general  rule.  It  is 
impossible  under  the  conditions  mentioned  to  accommodate  all  the 
defendants  by  suit  within  their  respective  counties,  and  hence  the  prin- 

"Mickie  v.  McGehee,  27  Texas,  138;  Liles  v.  Woods  &  Co.,  58  Texas,  417,  and 
cases  cited  infra. 

20  Whiting  v.  .Briscoe,  Dallam,  540;   Walker  v.  Walker,  22  Texas,  331. 

21  Hopson  v.  Caswell,  36  S.  W.,  312. 


218  VENUE. 

ciple  is  applied  as  far  as  may  be,  and  the  plaintiff  is  required  to  sue  in 
the  county  in  which  some  one  or  more  of  the  defendants  resides. 

This  clause,  however,  can  not  be  perverted  and  made  the  means  of 
defeating  the  general  policy  of  the  statute  by  joining  improper  parties 
or  fraudulently  bringing  about  a  state  of  facts  for  the  purpose  of  mak- 
ing new  parties,  so  as  to  give  venue.  That  is,  a  party  having  a  cause 
of  action  can  not  join  as  a  party  defendant  in  the  suit  a  resident  of  the 
county  in  which  he  desires  to  fix  the  venue,  who  is  not,  under  the  gen- 
eral rules  of  law,  either  a  necessary  or  a  proper  party;  nor  can  he,  by 
assignment  of  his  cause  of  action  for  the  purpose  of  fixing  venue,  have 
himself  sued  as  a  party  defendant  and  bring  the  persons  primarily  liable 
to  him  within  the  county  of  his  residence  as  codefendants,  and  then 
seek  to  recover  against  them  by  affirmative  pleadings  on  his  own  part. 
On  the  other  hand,  the  plaintiff  may  fix  the  venue  of  his  suit  by  the 
residence  of  any  one  of  the  defendants,  who  is  a  bona  fide  necessary 
or  a  proper  party  to  the  suit,  and  the  inconvenience  arising  there- 
from to  the  codefendants  could  not  be  considered  by  the  court,  but 
persons  not  really  necessary  or  proper  can  not  be  joined  fo  the  purpose 
of  giving  venue.22 

If  the  residence  of  some  of  the  defendants  is  known  and  that  of  the 
others  is  unknown,  it  has  been  held  by  the  Court  of  Appeals  that  the 
suit  must  be  brought  in  the  county  of  the  residence  of  some  one  of  the 
former.23 

Where  two  defendants  are  properly  joined  in  the  suit  and  the  venue 
fixed  by  the  residence  of  one,  and  pending  the  litigation  the  resident 
defendant  dies  and  the  suit  is  dismissed  as  to  his  representative,  this 
dpes  not  affect  the  jurisdiction  as  to  the  other  defendants  and  the  court 
should  proceed  with  the  trial.24 

The  residence  of  a  domestic  corporation  is  in  the  county  in  which 
it  maintains  its  principal  office.  Under  circumstances  specified  in  other 
clauses  of  this  statute,  many  suits  may  be  brought  against  such  a  cor- 

'•"  Ranc-on  v.  Barton,  4  Texas,  292 ;  Henderson  v.  Kissam,  8  Texas,  48 ;  Poole 
v.  I'idcett,  8  Texas.  123;  Raymond  v.  Holmes,  11  Texas,  58;  Roan  v.  Raymond, 
15  Texas,  86;  Christy  v.  Gu'nter,  26  Texas,  700;  Holloway  v.  Blum,  60  Texas, 
<i-2f>:  Rush  v.  Bishop,  60  Texas,  177;  Railway  Co.  v.  Mangum,  68  Texas,  342, 
8  S.  W.,  617;  Blum  v.  Strong,  71  Texas,  321,  6  S.  W.,  167;  Graves  v.  Bank, 
77  Texas,  555,  14  S.  W.,  163;  Mathonican  v.  Scott,  87  Texas,  398,  28  S.  W.,  1063; 
Brigham  v.  Thompson,  12  Texas  Civ.  App.,  562,  34  S.  W.,  358;  Edwards  v.  Bu- 
chanan, 14  Texas  Civ.  App..  268,  36  S.  W.,  1025;  Anderson  v.  Bank,  86  Texas, 
6U),  L'S  S.  W.,  344;  Williams  v.  Bank,  27  S.  W.,  148;  Cleveland  v.  Campbell,  38 
S.  W.,  219;  Mathis  v.  Pridom,  1  Texas  Civ.  App.,  81,  20  S.  W.,  1015;  Jones  v. 
Austin,  6  Texas  Civ.  App.,  505,  26  S.  W.,  144;  Gibbs  v.  Petree,  7  Texas  Civ.  App., 
532,  27  S.  W.,  685. 

23  Claiborne  v.  Pickens,  4  Willson's  C.  C.,  sec.  117. 

24  Lewis  v.  Davidson,  51  Texas,  256. 


EXCEPTIONS   TO    RULE.  219 

poration  in  counties  other  than  that  in  which  its  principal  office  is 
kept.  It  has  been  held  that  such  suits  are  not  brought  in  the  county 
of  the  corporation's  residence,  consequently  venue  against  another  de- 
fendant not  residing  in  the  county  of  such  suit  can  not  be  fixed  by  this 
clause  of  the  statute.26 


Venue  Fixed  by  Contract. 

The  fifth  exception  is:  "Where  a  person  has  contracted  in  writing 
to  perform  an  obligation  in  any  particular  county,  in  which  case  suit 
may  be  brought  either  in  such  county  or  where  the  defendant  has  his 
domicile." 

This  exception  embraces  only  written  contracts,  and  a  parol  agree- 
ment to  perform  a  contract  at  any  designated  place  can  not  affect  the 
venue  of  a  suit  brought  on  the  agreement.  This  section  embraces  all 
actions  growing  directly  out  of  the  breach  of  the  contract.26 

If  the  plaintiff  allege  that  the  contract  is  payable  in  the  county 
where  the  suit  is  brought  and  thus  fixes  the  venue,  and  the  de- 
fendant offers  no  plea  in  abatement,  the  jurisdiction  of  the  court  will 
not  be  affected  by  the  failure  to  prove  the  contract  as  laid.27 


Against  Executors,  Administrators,  or  Guardians. 

The  sixth  exception  is :  "Where  the  suit  is  against  an  administra- 
tor, executor  or  guardian,  as  such,  to  establish  a  money  demand 
against  the  estate  which  he  represents,  in  which  case  the  suit  must  be 
brought  in  the  county  in  which  such  estate  is  administered."  This 
statute  in  its  present  form,  embraces  only  suits  against  an  executor,  ad- 
ministrator, or  guardian  in  his  fiduciary  capacity  in  which  it  is  sought  to 
establish  a  moneyed  demand  against  the  estate.  The  former  statute  was 
very  much  more  comprehensive,  embracing  trustees,  as  well  as  the 
parties  enumerated  above,  and  having  no  limitations  with  reference 
to  the  nature  of  the  demand.  This  must  be  borne  in  mind,  or  the 
earlier  cases  will  be  misleading. 

This  statute  does  not  apply  to  suits  against  the  administrator  or  his 
bondsmen  by  the  distributees  or  parties  interested  in  the  estate  for 
waste  or  maladministration.28 

2'  Railway  Co.  v.  Blount,  3  Texas  Civ.  App.,  282,  22  S.  W.,  930. 

26 Middlebrook  v.  Mfg.  Co.,  80  Texas,  706,  26  S.  W.,  935.  Contra:  Yeager  v. 
Focke,  6  Texas  Civ.  App.,  542,  25  S.  W.,  652;  Altgelt  v.  Harris,  11  S.  W.,  857. 

2'  Wilson  v.  Adams,  15  Texas,  326. 
28  Bodies  v.  Buford,  58  Texas,  269. 


220  VENUE. 

For  Fraud  and  Defalcation  of  Public  Officers. 

"In  all  cases  of  fraud,  and  in  cases  of  defalcation  of  public  officers, 
in  which  case  suit  may  be  instituted  in  the  county  in  which  the  fraud 
was  committed,  or  where  the  defalcation  occurred,  or  where  the  de- 
fendant has  his  domicile/' 

The  term  fraud  as  used  in  this  statute  includes  both  actual  and 
constructive  fraud.29  The  fraud  must  constitute  the  principal  cause 
of  action,  or  the  suit  must  be  brought  to  set  aside  some  fraudulent  act 
or  transaction  in  order  to  give  venue.  That  an  issue  of  fraud  arises  in- 
cidentally or  in  connection  with  some  other  matter  which  is  the  real 
basis  of  the  suit  is  not  sufficient.30  The  action  for  defalcation  by  an 
officer  referred  to  here  is  the  ordinary  civil  action  for  damages  for 
official  misconduct,31  and  must  be  .distinguished  from  the  summary  rem- 
edy by  motion  against  a  sheriff  for  failure  to  pay  over  money  collected  on 
process,  which  must  be  made  in  the  court  from  which  the  process 
issued.32 

For  Damages  in  Attachment  and  Sequestration. 

"Any  suit  for  damages  growing  out  of  the  suing  out  of  any  writ  of 
attachment  or  sequestration,  or  for  the  levy  of  any  such  writ,  may  be 
brought  in  any  county  from  which  such  writ  was  issued,  or  in  any 
county  where  such  levy  was  made,  in  whole  or  in  part,  within  this 
State." 

This  clause  was  added  to  the  statute  in  1889.33 

Prior  to  that  time  venue  had  sometimes  been  laid  in  the  county  in 
which  the  writ  had  been  issued,  sometimes  in  that  in  which  the  levy 
had  been  made. — as  the  one  or  the  other  constituted  "a  trespass"  under 
the  ninth  clause  of  the  present  statute.34 

29  Evans  v.  Mills,  16  Texas,  200 ;  Boothe  v.  Fiest,  80  Texas,  141,  15  S.  W.,  799. 

30  Freeman  v.  Kuechler,  45  Texas,  597;  Hilliard  v.  Wilson  &  Blum,  65  Texas, 
237;  Blum  v.  Strong,  71  Texas,  321,  6  S.  W.,  167;  Baines  v.  Mansing,  75  Texas, 
200,  12  S.  W.,  984. 

31  De  la  Garza  v.  Booth,  28  Texas,  481. 

32  Rev.  Stats.  1895,  art.  1100;  De  Witt  v.  Dunn,  15  Texas,  106;  Beaver  v.  Batte, 
19  Texas,  111 ;  De  la  Garza  v.  Booth,  28  Texas,  478. 

33  Acts  1889,  p.  48. 

34  Cahn  Bros.  v.  Bonnett,  62  Texas,  674 ;  Hilliard  v.  Wilson,  65  Texas,  287 ;  Wil- 
lis &  Bro.  v.  McNatt  &  March,  75  Texas,  69,  13  S.  W.,  478;  Focke  v.  Blum,  82 
Texas,  436,  17  S.  W.,  770:  Baines  v.  Jemison,  86  Texas,  118,  23  S.  W.,  639. 


EXCEPTIONS   TO   RULE.  221 

For  Crime,  Offense,  or  Trespass. 

"Where  the  foundation  of  the  suit  is  some  crime,  offense,  or  tres- 
pass, for  which  a  civil  action  in  damages  may  lie,  in  which  case  the 
suit  may  be  -brought  in  the  county  where  such  crime,  or  offense,  or  tres- 
pass was  committed,  or  in  the  county  where  the  defendant  has  his  domi- 
cile." 

In  the  original  practice  act  of  183635  the  words  "crime"  and  "of- 
fense" occurred,  but  "trespass"  did  not.  In  construing  the  statute,  the 
courts  held  the  terms  crime  and  offense  to  be  legally  synonymous  and 
limited  the  exception  provided  by  the  clause  to  acts  which  were  in 
violation  of  the  criminal  law.30 

The  same  language  was  used  in  the  act  of  1846,37  and  was  con- 
strued in  the  same  way.38 

This  act  was  amended  by  that  of  December  10,  1863,39  in  which 
the  word  trespass  was  added.  The  language  of  this  clause  has  not  been 
changed  since..  The  meaning  of  the  word  trespass  has  frequently 
been  considered  by  the  courts  and  the  conclusion  has  been  reached  that 
it  is  not  to  be  interpreted  strictly  or  technically,  but  liberally.  In 
Hill  v.  Kimball,40  the  Supreme  Court  says :  "It  is  clear  that  unless 
the  action  in  this  case  can  be  classed  as  a.  trespass  within  the  meaning 
of  that  term  in  the  provision  quoted,  the  suit  was  improperly  brought 
in  Leon  County;  and  the  determination  of  that  point  depends  upon  the 
further  question  whether  the  word  is  .used  in  the  statute  in  its  most  re- 
stricted or  in  a  more  enlarged  legal  sense.  In  its  widest  signification  it 
means  any  violation  of  law ;  in  its  most  restricted  sense  it  means  an  in- 
jury intentionally  inflicted  by  force,  either  upon  the  person  or  property 
of  another.  But  it  still  has  a  signification  in  law  much  more  narrow 
than  the  first,  and  more  enlarged  than  the  second  meaning  given,  and 
embraces  all  cases  where  injury  is  clone  to  the  person  or  to  property, 
and  is  the  direct  result  of  wrongful  force. 

"In  this  last  sense  the  word  would  include  injuries  to  persons  or 
property  which  are  the  result  of  the  negligence  of  the  wrongdoer,  and 
it  seems  to  us  more  in  consonance  with  the  purpose  and  spirit  of  the 
exception  to  hold  that  it  was  in  this  sense  that  it  was  intended  that 
the  word  should  be  understood.  We  presume  the  exception  was  made 
in  the  interest  of  the  injured  party,  and  not  of  the  wrongdoer,  and  we 

35  Acts  1836,  p.  200. 

3B  lilies  v.  Knight,  3  Texas,  312. 

87  Acts   1846,  p.  363. 

38  Robertson  v.  Ephraim,  18  Texas,  118. 

39  Acts   1863. 

40  Hill  v.  Kimball,  76  Texas,  210,  13  S.  W.,  59. 


222  VENUE. 

see  no  good  reason  why  a  distinction  should  be  made  between  an  injury 
resulting  from  intentional  violence  and  one  resulting  from  negligence.  It 
occurs  to  us  the  consideration  which  induced  the  exception  was  that  one 
who  had  been  injured  in  his  person  or  his  property  by  the  wrongful  or 
negligent  conduct  of  another.,  should  not  be  driven  to  a  distant  forum  to 
get  redress  of  his  wrongs. 

"In  the  case  of  Ten  Eyck  v.  Bank,  31  N".  J.  L.,  428,  the  Supreme 
Court  of  New  Jersey  construed  the  word  'trespass'  as  used  in  a 
statute  of  that  State  as  descriptive  of  a  class  of  actions,  and  held  that 
it  was  not  used  in  its  most  restricted  sense,  but  applied  also  to  all  actions 
of  trespass  in  the  case.  See  also  Cook  v.  Hartman,  2  W.  &  W.  C.  C., 
770. 

"If,  as  we  think,  the  word  trespass  in  our  statute  was  intended 
to  embrace  not  only  actions  of  trespass  proper  as  known  to  the  com- 
mon law,  but  also  actions  of  trespass  on  the  case,  it  is  clear  that  the 
action  in  this  case  was  properly  brought  in  Freestone  County,  and 
that  the  court  had  jurisdiction  over  the  person  of  the  defendant/' 

In  the  latter  case  of  Bicker  et  al.  v.  Shoemaker,41  the  proper  mean- 
ing of  the  word  trespass  again  came  up  for  decision,  and  the  court 
qualified  the  language  just  quoted,  saying:  "The  construction  of  the 
word  'trespass'  in  that  provision  of  the  statute  came  before  us  for 
consideration  in  the  case  of  Hill  v.  Kimball,  and  we  there  held  that 
the  word  was  not  used  in  its  most  restricted  sense,  and  as  applying 
only  to  actions  for  injuries  inflicted  by  force  upon  the  person  or  prop- 
erty of  another,  but  that  it  would  embrace  actions  of  trespass  on  the 
case  as  known  to  the  common  law.  In  the  case  cited  the  alleged 
wrong  consisted  in  a  bloody  assault  by  the  defendant  upon  two 
negroes  in  the  presence  of  the  plaintiff's  wife,  and  it  was  averred  that 
by  reason  of  the  mental  excitement  of  the  wife  caused  by  the  defendant's 
conduct,  a  miscarriage  resulted.  It  was  held  that  the  cause  of  action 
was  a  trespass  within  the  meaning  of  the  statute,  and  the  suit  was 
properly  brought  in  the  county  where  the  trespass  was  committed. 
Between  that  and  the  case  now  under  consideration  there  is  a  marked 
distinction.  There  the  act  was  not  alleged  to  be  done  with  the  intent 
to  injure  plaintiff's  wife,  but  it  was  an  act  committed.  In  the  present 
case,  the  alleged  wrong  consists  in  the  negligent  omission  by  the  defend- 
ant's representative  to  do  an  act  which  it  was  his  duty  to  do.  Is 
this  a  'trespass'  within  the  meaning  of  the  statute?  We  think  not. 
The  words  'when  the  crime,  offense,  or  trespass  was  committed'  indicate 
that  the  word  trespass  was  intended  to  embrace  only  actions  for  such 
injuries  as  result  from  wrongful  acts  willfully  or  negligently  com- 
mitted, and  not  those  which  result  from  a  mere  omission  to  do  a  duty. 
There  are  expressions  in  the  case  of  Hill  v.  Kimball,  supra,  which 

41  Ricker  v.  Shoemaker,  81  Texas,  25,  16  S.  W.,  645. 


EXCEPTIONS   TO    RULE.  223 

would  tend  to  give  to  the  exception  in  the  statute  we  are  now  consid- 
ering a  wider  scope;  but  when  that  case  was  under  consideration  the 
distinction  we  now  draw  did  not  present  itself  to  our  minds."  This 
-case  has  been  adhered  to  since  without  question.42 

In  other  cases  in  which  there  was  no  question  that  trespasses  had 
been  committed  it  was  sometimes  difficult  to  determine  in  just  what 
Acts  they  consisted  and  where  they  took  place  and  who  was  responsible 
for  them. 

These  difficulties  arose  principally  in  cases  of  malicious  prosecution, 
abuse  of  legal  process  and  acts  committed  by  executive  officers  in  the 
.supposed  discharge  of  duty. 

The  Act  of  1889,  adding  the  clause  regarding  suits  for  damage  for 
wrongful  suing  out  and  levy  of  writs  of  attachment  or  sequestration, 
has  settled  these  difficulties  as  to  those  writs  and  action  under  them.  It 
however  leaves  the  law  as  to  all  other  trespasses  just  as  before. 

The  rules  seem  to  be  these.  If  the  process  is  properly  issued  and  the 
act  of  the  officer  is  in  strict  accord  with  it  there  is  no  trespass  and  no 
liability,  and  the  suit  against  the  officer  could  not  be  maintained  either 
.as  to  venue  or  on  the  merits.  If,  however,  the  process  is  proper  but 
the  officer  does  something  under  it  not  authorized  thereby,  he  is  a  tres- 
passer. This  trespass  may  consist  in  willfully  levying  on  more  prop- 
erty than  is  required  by  the  writ  or  on  different  property  from  that  com- 
manded in  the  writ  as  in  an  order  of  sale,  describing  specific  property, 
or  in  levying  on  property  not  belonging  to  the  defendant  in  the  writ, 
or  on  property  belonging  to  the  defendant  but  exempt  from  execution, 
or  in  willfully  or  negligently  arresting  a  different  person  from  the  one 
named  in  the  warrant,  or  in  purposely  or  negligently  damaging  or 
.sacrificing  the  goods  levied  on,43  or  in  any  other  abuse  of  process.44 

In  all  such  cases  the  trespass  is  committed  where  the  wrongful  act 
is  done,  and  suit  may  be  brought  there  against  the  officer  and  all  per- 
.sons  aiding  or  participating  in  the  trespass. 

In  these  cases  the  plaintiff  in  the  civil  suit  or  the  prosecuting  witness 
in  the  criminal  case  is  not  a  party  to  the  wrong  simply  by  having  had 
the  process  issued;  to  make  him  responsible  there  must  be  some  evi- 
dence of  his  participation  in  the  abuse  of  the  writ. 

On  the  other  hand,  if  the  litigation  in  which  the  process  was  issued 
though  in  strict  form  of  law,  were  wrongfully  and  maliciously  prose- 
•cuted,  the  execution  of  the  writ  in  conformity  to  its  commands  could 
not  be  a  trespass  on  the  part  of  the  officer,  unless  he  were  a  party  to  the 

"Connor  v.  Saunders,  81  Texas,  633,  17  S.  W.,  236;  Austin  v.  Cameron,  83 
'Texas,  351,  18  S.  W.,  437;  Conner  v.  Saunders,  9  Texas  Civ.  App.,  86,  29  S.  W., 
1142. 

43  Milliard  v.  Wilson,  65  Texas,  289. 

44  Carothers  v.  Mcllhenney,  63  Texas,  147. 


224 


VENUE. 


wrongful  prosecution  of  the  suit.  The  process  would  be  lawful  on  its 
face,  and  the  officer  could  not  be  required  to  judge  at  his  peril  of  the 
motives  and  purposes  of  the  prosecutor.  This  is  certainly  correct  in 
principle  and  supported  by  authority.  Our  courts  have  established  a 
rule  which,  in  my  judgment,  goes  further  than  the  principle  on  which 
it  is  said  to  be  founded.  They  say  that  the  levy  under  circumstances 
given  above  is  not  a  trespass  by  the  instigator  of  the  wrongful  suit,  and 
that  he  can  not  be  sued  in  the  county  in  which  the  arrest  is  made.  It 
seems  to  me  clear  that,  as  the  unlawful  arrest  or  levy  of  the  process 
was  clearly  contemplated  by  the  party  in  originating  the  suit,  was  in- 
deed his  principal  purpose  in  so  doing,  that  he,  the  instigator,  should 
be  regarded  as  committing  a  trespass  through  the  sheriff,  whom  he  had 
thus  improperly  forced  to  execute  the  process.  The  sheriff,  of  course, 
is  not  responsible,  for  he  has  committed  no  unlawful  act,  but  he  who 
knowingly  made  use  of  the  process  to  accomplish  his  own  unlawful  and 
malicious  purposes  I  thing  should  be.  However  that  may  be,  it  seems 
to  be  settled  to  the  contrary  in  our  decisions,  and  we  may  accept  it  as 
the  rule  on  question  of  venue  in  these  suits,  that  in  cases  of  unlawful 
pi'jcurement  of  legal  process,  regular  on  its  face,  the  subsequent  execu- 
tion of  such  process  by  the  officer  to  whom  directed  in  another  county 
will  not  fix  the  venue  there.  If,  however,  the  party  instituting  the 
malicious  prosecution  is  present  in  person,  or  by  agent  other  than  the 
officer,  and  participates  in  such  execution,  he  may  be  sued  there.45 

In  suits  for  libel,  if  the  publication  be  of  such  character  as  to  come 
within  the  terms  of  our  criminal  statute,46  it  would  be  a  crime,  and  the 
case  could  be  brought  in  any  county  in  which  the  statement  was  pub- 
lished or  circulated.47 

If  the  publication  did  not  come  within  the  definition  of  the  crime  of 
libel,  this  section  would  not  apply.  In  cases  of  slander,  the  same  rules 
would  doubtless  govern. 


For  Personal  Property. 

"Where  the  suit  is  for  the  recovery  of  any  personal  property,  in  which 
case  the  suit  may  be  brought  in  any  county  in  which  the  property  may 
be,  or  in  which  the  defendant  resides." 

This  needs  no  elucidation. 


43Hubbard  v.  Lord,  59  Texas,  384;  Raleigh  v.  Cook,  60  Texas,  440;  Carothers. 
v.  Mcllhenney,  63  Texas,  141;  Hilliard  v.  Blum,  65  Texas,  290. 

"Penal  Code,  title  16,  chap.  1. 

47  Belo  &  Co.  v.  Wren,  63  Texas,  720. 


EXCEPTIONS  TO   RULE.  225 

Concerning  Inheritance. 

"Where  the  defendant  has  inherited  an  estate,  concerning  which  the 
suit  is  commenced,  in  which  case  suit  may  be  brought  in  the  county 
where  such  estate  principally  lies." 

I  have  found  no  cases  construing  this  or  the  next  preceding  section. 

To  Foreclose  Mortgages. 

"Where  the  suit  is  for  the  foreclosure  of  a  mortgage  or  other  lien, 
in  which  case  the  suit  may  be  brought  in  the  county  in  which  the 
property  subject  to  such  lien  or  a  portion  thereof  may  be  situated." 

As  first  enacted,  this  statute  applied  only  to  foreclosure  of  mort- 
gages.48 In  the  act  of  1863  the  clause  was  extended  to  include  all 
liens,  whether  technically  mortgages  or  not.49  The  courts  have  recog- 
nized the  difference  and  have  applied  it  to  vendor's  liens50  and  to  liens 
of  contractors  on  the  roadbed  of  a  railroad  company.51 

For  Partition. 

"Suits  for  the  partition  of  lands  or  other  property  may  be  brought 
in  the  county  where  such  lands  or  a  part  thereof  may  be,  or  in  the 
county  in  which  one  or  more  of  the  defendants  reside." 

Where  the  suit  is  strictly  one  for  partition  and  all  the  parties  are 
interested  in  all  the  lands,  the  statute  is  easy  of  application,  and  the 
plaintiff  has  the  option  of  suing  where  the  land  or  any  part  of  it  lies 
or  where  any  one  of  the  defendants  resides. 

Where  there  are  two  or  more  tracts  of  land  claimed  by  the  plaintiff 
as  part  of  the  same  estate,  and  some  of  the  defendants  are  interested  in 
all  of  the  land  and  others  only  in  one  particular  tract,  suit  may  be 
brought  against  all  the  defendants  in  the  county  where  part  of  the 
land  lies,  or  in  the  county  of  the  residence  of  the  defendants  who  are 
interested  in  it  all,  but  not  in  the  county  of  the  residence  of  those  de- 
fendants interested  in  only  a  part.  Disregard  of  the  concluding  por- 
tion of  this  rule  will  be  fatal  to  the  plaintiff's  suit,  if  urged  in  proper 
time  and  manner.52  Where  the  plaintiffs  claim  undivided  interests  in 

48  O.  &  W.  Dig.,  401 ;  Coffee  v.  Haynes,  24  Texas,  191. 

49  Pasch.  Dig.,  art.  1422 ;  Hays  v.  Stone,  36  Texas,  186. 

50  Joiner  v.  Perkins,  59  Texas,  303. 

51  Railway  Co.  v.  Cockrill,  72  Texas,  613,  10  S.  W.,  702. 

52  Osborn  v.  Osborn,  62  Texas,  496. 

15 — Pleading, 


226  VENUE. 

different  tracts  in  different  counties,  but  the  cotenants  with  the  plaintiffs 
in  the  different  tracts  are  different,  suits  for  partition  of  the  tracts 
should  be  brought  separately,  the  venue  in  each  case  being  fixed  by  the 
facts  regarding  the  land  to  be  affected  by  the  judgment.53  Suit  to 
partition  and  to  foreclose  a  lien  on  the  interest  of  a  cotenant  to  be  set 
apart  to  him  is  properly  brought  in  the  county  where  the  land  lies, 
though  the  defendant  may  live  elsewhere.54  It  seems,  though  the  case 
announcing  the  doctrine  is  somewhat  obscure,  that  if  the  venue  is 
properly  fixed  by  the  proceedings  for  partition,  the  court  may  properly 
adjudge  matters  in  the  nature  of  specific  performance  of  a  contract  for 
conveyance  of  title,  though  the  defendants  reside  in  a  different  county 
and  set  up  their  privilege.55  While  it  is  permissible  to  join  suit  for 
partition  with  an  action  of  trespass  to  try  title,  in  such  a  case  the  venue 
is  regulated  by  the  clause  of  the  statute  regarding  the  latter  action.56 


Suits  Concerning  Lands. 

"Suits  for  the  recovery  of  land  or  damages  thereto,  suits  to  remove 
incumbrances  upon  the  title  to  land,  and  suits  to  prevent  or  stay  waste 
on  land,  must  be  brought  in  the  county  in  which  the  land  or  a  part 
thereof  may  lie." 

To  properly  understand  this  section  of  the  statute,  it  is  necessary  to 
bear  in  mind  the  several  changes  in  the  law  made  by  the  different 
statutes  on  the  subject.  In  the  Act  of  1836,57  the  exception  was  ex- 
pressed in  these  words, — ''in  cases  where  land  is  the  object  of  the  suit." 
In  the  Act  of  184658  the  language  is, — "in  cases  where  the  recovery  of^ 
land  or  damages  thereto  is  the  object  of  the  suit,  in  which  cases  the 
suit  must  be  instituted  where  the  land  or  a  part  thereof  is 
situated."  This  section  was  not  amended  in  1863.69  In  the  revision  of 
1879,  it  was  put  in  its  present  form,  the  amendment  consisting  n;  the 
addition  to  the  old  clause  of  the  words  "suits  to  remove  incumbran.es 
upon  title  to  land,  suits  to  quiet  title  to  land,  and  suits  to  prevent  or 
stay  waste  upon  land."  The  revision  of  1895-  left  the  section  an- 
changed. 

"Peterson  v.  Fowler,  73  Texas,  524,  US.  W.,  534. 

54  Morris  v.  Nunn,  79  Texas,  125,  15  S.  W.,  220. 

55Coryell  v.  Linthecum,  US.  W.,  1092. 

54  Stark  v.  Burr,  56  Texas,  131;  Murrell  v.  Wright,  78  Texas,  519,  15  S.  W.,  156. 

07  Laws  of  Repub.,  vol  1,  198;  Laws  of  Texas,  Gammel,  vol.  1,  1260. 

58  Hart.  Dig.,  art.  667;  0.  &  VV.  Dig.,  art.  401;  Laws  of  Texas,  Gammel,  vol.  2, 
1670. 

59  Acts   Tenth  Leg.,   p.    10;    Pasch.   Dig.,   art.    1423;    Laws  of  Texas,  Gammel, 
-vol.  5,  665. 


EXCEPTIONS   TO    RULE.  227 

In  Morris  v.  Runnels,60  it  was  held  that  this  section  of  the  Act  of 
1846  did  not  embrace  suits  for  the  rescission  of  a  contract  relating  to 
land;  and  in  Hearst  v.  Kuykendall,61  it  was  decided  that  a  suit  for 
specific  performance  of  a  contract  to  convey  land  was  not  within  the 
exception.  The  court  says :  "An  action  for  the  recovery  of  lands  has 
a  well  known  and  definite  signification,  and  means  an  action  of  eject- 
ment, trespass  to  try  title,  or  a  suit  to  recover  the  land  itself,  but  not 
one  to  enforce  a  contract  for  its  sale,  and  the  delivery  of  a  deed  or  title 
for  the  land.  *  *  *  To  secure  title  deeds  to  land  is  one  thing;  to 
recover  the  land  itself  is  another;  and  as  the  former  is  generally  and 
mainly  the  object  of  a  suit  by  vendee  for  the  specific  performance  of  a 
contract  for  the  sale  of  land,  it  is  apparent  that  the  action  does  not 
come  within  the  scope  of  a  provision,  the  operation  of  which  is  restricted 
to  suits  for  the  recovery  of  land."  This  construction  was  uniformly 
followed  until  the  amendment  of  1879  went  into  effect.62 

The  difference  in  the  exception  made  by  that  revision  and  its  legal 
effect  are  very  carefully  considered  in  the  case  of  Thomson  v.  Locke,63 
There  this  language  is  used :  "An  action  for  the  recovery  of  lands  has 
a  well  known  and  definite  signification,  and  means  an  action  of  eject- 
ment, trespass  to  try  title,  or  suit  to  recover  the  land  itself.  Hearst  v. 
Kuykendall,  16  Texas,  329. 

"The  'recovery  of  land'  manifestly  has  reference  to  the  possession ;  and 
'damage  thereto'  as  manifestly  has  reference  to  an  'injury  to  the  posses- 
sion or  to  the  freehold  or  estate.'  Miller  v.  Rusk,  17  Texas,  171. 

"It  is  not  believed  this  is  a  'suit  to  remove  incumbrances  upon  the  title 
to  land.' 

"The  word  'incumbrance,'  in  a  popular  sense,  might  include  an  illegal 
claim  set  up  to  land,  under  such  state  of  facts  as  would  apparently  give 
title,  when  in  fact  no  title  existed.  Thus  used  it  would  be  the  equivalent 
of  the  words  'cloud  upon  title.'  In  a  legal  sense,  the  word  'incumbrance' 
means  'an  estate,  interest,  or  right  in  lands,  diminishing  their  value  to 
their  general  owner,  a  paramount  right  in  or  weight  upon  land  which  may 
lessen  is  value.'  Abbott's  Law  Dictionary. 

"It  is  claimed  that  one  of  the  leading  purposes  of  this  suit  is  'to  quiet 
the  title  to  land.'  If  this  be  true,  then  the  suit  was  properly  brought  in 
Kinney  County.  A  comparison  of  the  law  now  in  force  with  those  form- 
erly regulating  venue,  evidences  the  intention  of  the  Legislature  to  fix 
the  venue  of  cases,  affecting  the  title  to  land,  in  the  county  in  which  the 
land  may  be  situated,  in  cases  in  which  this  was  not  done  by  the  former 

60 12  Texas,  175. 

61  16  Texas,  329. 

62  Vendever  v.  Freeman,  20  Texas,  336;  Miller  v.  Rusk,  17  Texas,  171;  Lehmberg 
v.  Biberstein,  51  Texas,  462. 

63  66  Texas,  386,  1  S.  W.,  112. 


228  VENUE. 

laws.  All  but  the  first  clause  of  the  statute  which  we  have  quoted,  are 
additions  to  the  Act  of  December  10,  1863,  regulating  venue.  P.  D., 
j432. 

"An  examination  of  the  several  subdivisions  of  Eevised  Statutes, 
Article  1198,  shows  an  intention  on  the  part  of  the  Legislature  to  re- 
quire such  actions  as  may  affect  or  are  brought  to  secure  title,  either 
legal  or  equitable,  to  land  to  be  brought  in  the  county  in  which  tM 
land  is  situated.  The  eleventh  subdivision  of  the  act  of  December  10, 
1863,  only  required  such  actions  as  might  be  brought  under  the 
statutes  regulating  actions  of  trespass  to  try  title  to  be  brought  in  the 
county  where  the  land  was  situated ;  while  the  law  now  in  force  requires 
actions  to  be  brought  in  the  county  in  which  the  land  is  situated  which 
can  not  be  brought  and  maintained  as  actions  of  trespass  to  try  title. 
The  evident  intention  was  to  provide  the  venue  in  all  actions  in  which 
the  title  to  land  was  in  controversy;  and  so,  whether  the  title  sought 
to  be  enforced  or  protected  was  of  such  dignity  as  to  authorize  an  action 
of  trespass  to  try  title,  or  of  such  inferior  grade  as  not  to  entitle  the 
holder  of  it  to  resort  to  and  have  all  the  statutory  rights  which  per- 
tain to  that  action." 

The  expression  in  this  section  is  that  the  suits  referred  to  "must"  be 
brought  in  the  county  Avhere  the  land  lies.  It  has  been  frequently 
decided  that  this  is  neither  mandatory  nor  jurisdictional,  but  only  gives 
to  the  party  sued  for  the  land  the  privilege  of  having  the  litigation 
conducted  in  the  county  where  the  land  is.  This  privilege  he  waives 
by  a  failure  to  assert  it  at  the  proper  time,  and  a  disregard  of  the 
privilege  when  claimed  would  be  error  subjecting  the  judgment  to  re- 
vision, but  would  not  make  the  judgment  void.64 

Some  complications  have  arisen  over  the  provision  as  to  part  of  the 
land,  and  the  cases  are  not  entirely  clear  as  to  the  proper  practice. 

Where  all  the  land  is  one  tract  through  which  a  county  line  runs, 
and  all  the  defendants  are  interested  in  or  have  possession  of  all  the 
land,  the  case  is  simple.  Venue  may  be  laid  in  either  county.  Where 
all  the  land  is  one  tract  and  it  is  divided  by  a  county  line,  and  the 
trespassers  in  the  different  counties  are  not  the  same  persons  and  have 
no  connection  with  each  other,  it  seems  that  the  venue  would  be  in 
either  county.  All  such  persons  are  proper  parties  in  the  one  suit  and 
may  be  joined. 

But  a  different  rule  applies  when  the  tracts  are  distinct  and  separate 
and  the  defendants  reside  in  different  counties. 

"The  fact  that  the  plaintiffs  rely  upon  the  same  facts  for  the  re- 
covery of  three  distinct  tracts  of  land,  can  not  entitle  them  to  main- 

64  Ryan  v.  Jackson,  11  Texas,  297;  Morris  v.  Runnels,  12  Texas,  175;  De  la  Vega 
v.  League,  64  Texas,  205;  Campbell  v.  Trimble,  75  Texas,  270,  12  S.  W.,  863. 


EXCEPTIONS   TO    RULE.  229 

tain  this  action  for  land  situated  in  three  counties  and  in  no  way  con- 
nected, in  the  county  in  which  one  of  the  tracts  is  situated,  unless  such 
defendants  as  only  claim  land  in  other  counties  have  waived  their 
rights  to  be  sued  only  in  the  county  in  which  the  land  they  claim  is 
situated/'60 

In  suits  to  remove  cloud  from  title  in  which  there  are  many  de- 
fendants one  or  more  of  them  who  are  necessary  parties  may  insist 
on  the  privilege  of  having  the  suit  brought  in  the  county  where  the 
land  lies,  and  such  right  is  not  lost  by  waiver  of  the  privilege  by 
the  other  defendants.  Abatement  of  the  suit  as  to  such  necessary  party 
would  abate  it  as  to  all  and  necessitate  the  bringing  of  another  suit  in 
the  proper  county.60  Doubtless  the  same  rule  would  apply  in  each  of 
the  other  cases  mentioned  in  the  statute. 

In  a  suit  of  trespass  to  try  title  may  be  incorporated  an  attack  upon 
a  void  judgment,  and  the  venue  is  properly  laid  in  the  county  where 
the  land  is  situated.67  This  must  be  distinguished  from  an  attack  upon 
a  judgment  for  reasons  which  merely  render  it  voidable.  This  can  only  be 
done  by  direct  proceeding  brought  in  the  county  where  the  judgment 
was  rendered.  If  the  proceedings  were  in  the  justice  court,  it  seems 
that  the  suit  should  be  brought  in  the  district  court  of  the  county  in 
which  the  land  lies.68 


On  Warranty  of  Title  to  Land. 

In  breach  of  warranty  of  title  to  lands,  where  the  vendors  liable 
thereon  live  in  different  counties,  the  plaintiff  may  bring  his  action 
in  the  county  where  either  of  such  vendors  resides,  and  join  all  other 
warrantors  in  the  same  suit.69  One  may  for  breach  of  covenant  of 
warranty  sue  his  immediate  warrantor  and  remote  warrantors  in  the 
county  where  only  the  immediate  warrantor  lives;  but  the  residence  of 
the  immediate  warrantor  will  not  permit  the  others  being  sued  in  the 
same  action  for  breach  of  covenant  of  warranty  of  other  land  which 
they  had  not  warranted.70  In  trespass  to  try  title,  defendant  may 
implead  his  grantor  on  his  warranty  though  the  suit  is  in  a  county 
other  than  the  grantor's  residence.71 

85  Martin  v.  Robinson,  67  Texas,  382,  9  S.  W.,  134. 

66  Russell  v.  Railway  Co.,  68  Texas,  650,  5  S.  W.,  686. 

67  Bender  v.  Damon,  72  Texas,  92,  9  S.  W.,  747. 

68  Smith  v.  Perkins,  81  Texas,  152,  16  S.  W.,  805. 

69  Carothers  v.  Johnson,  4  Willson's  C.  C.,  sec.  263. 

70  Chaison  v.  Ueauchamp,  12  Texas  Civ.  App.,  109,  34  S.  W.,  304. 

71  Meade  v.  Jones,  13  Texas  Civ.  App.,  320,  35  S.  W.,  310. 


230  VENUE. 

Suits  for  Divorce. 

"Suits  for  divorce  from  the  bonds  of  matrimony  shall  be  brought  in 
the  county  in  which  the  plaintiff,  whether  husband  or  wife,  shall  have 
resided  for  six  months  next  preceding  the  bringing  of  the  suit." 

The  allegation  that  plaintiff  is  a  bona  fide  citizen  of  a  certain  county 
in  the  State  and  has  been  for  more  than  six  months  before  the  filing 
of  the  petition  is  not  the  equivalent  of  the  statutory  requirement, 
citizenship  and  residence  not  being  the  same  in  law.72 

The  bona  fides  of  plaintiff's  residence  depends  upon  whether  such 
residence  be  taken  up  solely  for  the  purpose  of  suing  for  a  divorce  or 
with  the  intention  of  making  the  county  a  permanent  home.73 

Suits  to  Enjoin  Judgments. 

"When  the  suit  is  brought  to  enjoin  the  execution  of  a  judgment  or 
to  stay  proceedings  in  any  suit,  in  which  case  the  suit  shall  be  brought 
in  the  county  in  which  such  judgment  was  rendered  or  in  which  such 
suit  is  pending." 

The  above  article  relates  to  injunction  staying  the  judgment  or  pro- 
cess issued  on  it,  which  would  prevent  enforcement  of  the  judgment  or 
of  the  particular  writ  for  some  defect  therein,  and  does  not  apply  to 
an  injunction  restraining  the  sale  of  property  claimed  to  be  exempt 
from  execution  and  not  seeking  to  affect  the  judgment  or  the  writ. 
Such  an  injunction  may  be  granted  and  heard  in  the  county  where 
the  land  or  other  property  levied  on  is  situated.74  Suits  for  damages 
upon  an  injunction  bond  may  be  brought  in  a  county  in  which  reside 
one  or  more  of  the  defendants,  although  it  be  a  county  other  than 
that  in  which  the  injunction  suit  was  tried.75 


Suits  to  Revise  Proceedings  of  the  County  Court. 

"Suits  to  revise  the  proceedings  of  the  county  court  in  matters  of 
probate  must  be  brought  in  the  district  court  of  the  county  in  which 
such  proceedings  were  had." 

The  above  does  not  conflict  with  the  following:  "The  county  court 
is  the  proper  court  in  which  to  bring  a  proceeding  to  contest  the  validity 
of  a  paper  admitted  to  probate  as  a  will."76 

'-  Haymond  v.  Haymond,  74  Texas,  414,  12  S.  W.,  90. 

73  Jones  v.  Jones,  60  Texas,  457. 

74  Van  Ratcliff  v.  Call,  72  Texas,  491,  10  S.  W.,  578. 

75  Wood  v.  Hollander,  84  Texas,  394,  19  S.  W.,  551. 
'"  Franks  v.  Chapman,  61  Texas,  576. 


EXCEPTIONS   TO    RULE.  231 

The  district  court  has  no  original  probate  jurisdiction,  except  upon 
the  disqualification  of  the  judge  of  the  county  court,  and  the  record  of 
a  probate  case  in  a  district  court  must  show  affirmatively  that  such  ex- 
ception exists.77 


Suits  Against  County. 

"Suits  against  any  county  shall  be  commenced  in  some  court  of 
competent  jurisdiction  within  such  county." 

Where  the  county  is  sued  and  there  are  other  defendants,  this  sec- 
tion will  control  section  four,  and  suit  must  be  brought  in  the  proper 
court  in  the  defendant  county.78 


Mandamus. 

"Suits  for  mandamus  against  the  heads  of  any  of  the  departments 
of  the  State  government  shall  be  brought  in  the  district  court  of  the 
county  in  which  the  seat  of  government  may  be." 

The  Legislature  in  1881  passed  an  act  as  follows :  "No  court  of  this 
State  shall  have  power,  authority,  or  jurisdiction  to  issue  the  writ  of 
mandamus  or  injunction  or  any  other  mandatory  or  compulsory  writ 
or  process  against  any  of  the  officers  of  the  executive  departments  of 
the  government  of  this  State,  to  order  or  compel  the  performance  of 
any  act  or  duty  which  by  the  laws  of  this  State  they  or  either  of  them 
are  authorized  to  perform,  whether  such  act  or  duty  be  judicial,  min- 
isterial, or  discretionary."79 

This  was  carried  forward  into  revision  of  1895. 80  This  seems  to  take 
from  the  courts  power  to  entertain  suits  of  the  kinds  referred  to  in 
this  section,  and  consequently  to  practically  annul  the  section.81 


Suits  in  Behalf  of  the  State. 

"Suits  in  behalf  of  the  State  for  the  forfeiture  of  the  charters  of 
private  corporations  chartered  by  the  act  of  the  Legislature  shall  be 

77  Bowser  v.  Williams,  6  Texas  Civ.  App.,  197,  25  S.  W.,  453. 

78  Montague  Co.  v.  Meadows,  31  S.  W.,  694. 

79  Acts  1881,  p.  7. 

89  Rev.  Stats.  1895,  art.  4801. 

81  As  to  effect  of  arts.  4861  and  1012  as  to  jurisdiction  of  Supreme  Court,  see 
Teat  v.  McGaughey,  85  Texas,  479,  22  S.  W.,  302;  Pickle  v.  McCall,  86  Texas,  217, 
24  S.  W.,  265;  McKenzie  v.  Baker,  88  Texas,  674,  32  S.  W.,  1068. 


232  VENUE. 

commenced  in  the  district  court  of  the  county  in  which  the  seat  of  gov- 
ernment may  be."82 


Suits   on  Behalf  of  the   State   to   Forfeit   Lands   Fraudulently 
Alienated. 

"Suits  on  behalf  of  the  State  to  forfeit  land  fraudulently  or  colorably 
alienated  by  railway  companies  in  fraud  of  the  rights  of  the  State,  under 
the  laws  granting  lands  to  railway  companies,  shall  be  brought  in  the 
county  in  which  the  seat  of  government  may  be."83 


Suits  Against  Private  Corporations. 

"Suits  against  any  private  corporation,  association  or  joint  stock 
company  may  be  commenced  in  any  county  in  which  the  cause  of  action 
or  any  part  thereof  arose,  or  in  which  such  corporation,  association,  or 
company  has  an  agency  or  representative,  or  in  which  its  principal 
office  is  situated.  And  suits  against  a  railroad  corporation,  or  against 
any  assignee,  trustee,  or  receiver  operating  its  railway  may  also  be 
brought  in  any  county  through  or  into  which  the  railroad  of  such  cor- 
poration extends  or  is  operated.  Suits  against  receivers  of  persons  and 
corporations  may  also  be  brought  as  provided  for  in  article  1484. 

"Art.  1484.  Actions  may  be  brought  against  the  receiver  of  the 
property  of  any  person  where  said  person  resides.  Actions  may  be 
brought  against  the  receivers  of  a  corporation  in  the  county  where  the 
principal  office  of  said  corporation  may  be  located,  and  against  the  re- 
ceivers of  a  railroad  company  in  any  county  through  or  into  which  the 
road  is  constructed,  and  service  of  summons  may  be  had  upon  the  re- 
ceiver, or  upon  the  general  or  division  superintendent  of  the  road,  or  upon 
any  agent  of  said  receiver  who  resides  in  the  county  in  which  the  suit 
is  brought." 

In  1874  the  Legislature  passed  two  acts,  one  on  March  21st,  the 
other  on  April  17th,  the  effect  of  which  is  practically  the  same  as  this 
section.  Some  objection  was  made  to  the  constitutionality  of  this 
legislation,  based  on  defects  in  the  forms  of  the  acts.  These  were 
overruled.84  They  would,  however,  have  no  application  to  the  law  in 
its  present  form,  had  they  been  sustained.85 

In  1879,  the  two  acts  of  1874  were  combined  and  enacted  in  the 

32  Rev.  Stats.  1895,  art.  1194,  sec.  21. 

»'•>  Const,  art  XIV,  sec.  15;  Rev.  Stats.  1895,  art.  1194,  sec.  22. 

81Breen  v.  Railway  Co.,  44  Texas,  302. 

85  Railway  Co.  v.  Willie,  53  Texas,  324;  Railway  Co.  v.  Ford,  53  Texas,  371. 


EXCEPTIONS  TO   BULB.  233 

language  now  used,  except  the  last  sentence  regarding  suits  against 
receivers  in  article  1484. 

This  section  fixes  venue  not  by  the  nature  of  the  suit  or  of  the  mat- 
ters to  be  affected  thereby,  but  solely  by  the  character  of  the  defen- 
dants— private  corporations,  associations,  and  joint  stock  companies. 
The  first  and  third  of  these  terms  is  readily  understood;  what  is  in- 
cluded in  the  second  is  not  so  apparent.  We  have  found  no  case  con- 
struing it,  and  will  not  undertake  to  give  its  meaning. 

Against  any  defendant  embraced  in  these  terms  suit  may  be  brought 
in  any  one  of  a  number  of  counties.  The  first  county  designated  is 
that  in  which  the  cause  of  action  or  a  part  thereof  arose.  Naturally 
this  provision  soon  came  before  the  courts  for  construction.  In  an 
early  act  organizing  justices'  courts,  the  venue  of  actions  in  those  courts 
was  made  in  many  instances  to  depend  upon  where  the  cause  of  action 
arose.  In  construing  this  expression  in  the  case  of  Philio  v.  Blythe,86 
the  Supreme  Court  says :  "In  what  does  a  cause  of  action  consist  ?  It 
may  be  defined  to  consist  as  well  of  the  right  of  the  plaintiff  in  the 
action  as  of  the  injury  to  such  right.  In  Chitty  on  Pleadings,  volume 
1,  p.  288,  the  three  principal  points  of  a  cause  of  action  are  said 
to  be  (1)  the  right  whether  founded  upon  contract  or  tort,  (2)  the 
injury  to  such  right,  and  (3)  the  consequent  damages.  It  may  be 
admitted  that  the  term  cause  of  action  is  sometimes  used  in  a  more 
limited  sense,  and  that  where  the  cause  is  founded  on  a  contract,  the 
contract  itself  is  denominated  the  cause  of  action;  but  more 
frequently,  and  where  the  terms  are  used  with  more  precision 
and  accuracy,  the  term  embraces  a  much  wider  scope  and  includes  not 
only  the  contract,  but  its  performance,  if  executory,  and  also  the  breach 
of  such  contract."  This  definition  was  adopted  by  the  Supreme  Court 
when  the  phrase  came  up  for  construction  under  this  statute,87  and 
has  since  been  adhered  to.88 

The  next  county  in  which  venue  may  be  laid  is  one  in  which  the 
corporation  or  association  or  company  has  an  agency  or  representative. 
Under  this  the  company  may  be  sued  in  any  county  where  it  has  an 
established  place  of  business  or  a  local  representative  acting  for  it, 
without  reference  to  the  location  of  its  corporate  domicile,  or  principal 
office,  or  where  the  cause  of  action  arose.  The  third  county  is  that 
in  which  the  principal  office  is  located.89  If  the  defendant  be  a  rail- 
way company  or  an  assignee,  trustee,  or  receiver  of  such  a  company,  in 

86 12  Texas,  124. 

87  Railway  Co.  v.  Hill,  63  Texas,  383. 

88  Railway  Co.  v.  Home,  69  Texas,  643,  9  S.  W.,  440 ;  E.  M.  Co.  v.  Weddington, 
21  S.  W.,  576. 

89  Railway  Co.  v.  Trawick,  84  Texas,  65,  19  S.  W.,  370;  Railway  Co.  v.  Worley, 
25  S.  W.,  478. 


234  VENUE. 

addition  to  the  above,  suit  may  be  brought  against  him  or  it,  as  the 
case  may  be,  in  any  county  into  or  through  which  the  line  of  road  ex- 
tends. As  stated  at  the  beginning  of  the  chapter,  there  is  not  per- 
fect accord  in  the  decisions  as  to  the  privilege  of  the  defendant  when  the 
case  comes  within  different  sections  of  the  statute.  The  Supreme 
Court  holds  that  this  section  is  cumulative  to  section  number  fourteen 
regarding  lands,  and  that  where  the  cause  of  action  is  for  damages  to- 
lands  the  suit  may  be  brought  under  either  section,90  while  the  Court 
of  Civil  Appeals  at  Fort  Worth  holds  that  in  actions  of  trespass  to  try 
title  a  railway  company  can  insist  upon  its  privilege  of  being  sued  only 
in  the  county  where  the  land  lies.91 

Article  1484  and  so  much  of  section  23  above  as  applies  to  receivers 
are  innovations  on  the  equity  rules  of  practice  which  formerly  required 
that  all  suits  against  a  receiver  should  be  brought  in  the  court  in  which 
the  receivership  was  pending,  or,  if  that  court  had  no  jurisdiction  of 
the  matter,  then  in  such  court  having  jurisdiction  as  the  chancellor- 
might  select  to  try  it. 

These  statutes  are  legal  consent  for  the  institution  and  mainte- 
nance of  all  suits  in  courts  of  competent  jurisdiction  in  the  counties 
designated,  not  involving  the  general  management  of  the  receivership  or 
the  distribution  of  the  funds.  The  language  of  our  Supreme  Court 
in  Dillingham  v.  Eussell,92  is  appropriate  here:  "No  court  can  in- 
terfere with  the  custody  of  property  held  by  another  court  through  a 
receiver,  but  may  establish  by  its  judgment  a  debt  against  the  re- 
ceivership, which  must  be  recognized  even  by  the  court  appointing  the 
receiver,  and  it  is  not  open  to  revision  by  it  if  the  court  rendering 
the  judgment  had  jurisdiction  of  the  subject  matter  and  the  parties. 

"The  manner  in  which  a  judgment  so  rendered  shall  be  paid,  and 
the  adjustment  of  equities  between  all  persons  having  claims  on  the 
property  and  effects  in  the  hands  of  a  receiver  made,  must  necessarily 
be  under  the  control  of  the  court  having  custody  through  its  receiver, 
but  this  does  not  affect  the  jurisdiction  of  other  courts  conclusively  to 
establish  by  judgment  the  existence  and  extent  of  a  claim." 

The  effect  of  this  article  so  far  as  venue  is  concerned  seems  to  be  to 
fix  venue  in  suits  against  receivers  of  the  estate  or  property  of  any  in- 
dividual in  the  county  in  which  he  resides,  and  in  suits  against  re- 
ceivers of  corporations  generally  in  the  county  of  the  domicile  of  the 
corporation,  i.  e.,  where  it  has  its  principal  office,  and  in  suits  against 
the  receivers  of  railroads  it  seems  to  add  nothing  to  section  23  above 
considered.  Its  concluding  clause  sets  forth  the  practice  as  to  service 
in  case  of  receivership  of  railway  companies. 

90  Railway  Co.  v.  Home,  69  Texas,  646,  9  S.  W.,  440. 
"Railway  Co.  v.  Jenkins,  29  S.  W.,  1113. 
62  73  Texas,  50,  11  S.  W.,  139. 


EXCEPTIONS   TO    RULE.  235 

Suits  by  Railroad  Operatives  for  "Wages. 

"Suits  by  mechanics,  laborers,  and  operatives,  for  their  wages  due 
by  railroad  companies,  may  be  instituted  and  prosecuted  in  any  county 
in  this  State  where  such  labor  was  performed,  or  in  which  the  cause  of 
action  or  part  thereof  accrued,  or  in  the  county  in  which  the  principal 
office  of  such  railway  company  is  situated,  and  in  all  such  suits  ser- 
vice of  process  may  be  made  in  the  manner  now  required  by  law."9a 

Against  Foreign  Corporations. 

Foreign,  public,  or  private  corporations,  joint  stock  companies  or 
associations,  not  incorporated  by  the  laws  of  this  State,  and  doing  busi- 
ness within  this  State,  may  be  sued  in  any  court  within  this  State 
having  jurisdiction  over  the  subject  matter,  in  any  county  where  the 
cause  of  action  or  a  part  thereof  accrued,  or  in  any  county  where 
such  company  may  have  an  agency  or  representative,  or  in  the  county 
in  which  the  principal  office  of  such  company  may  be  situated;  or  when 
the  defendant  corporation  has  no  agent  or  representative  in  the  State, 
then  in  the  county  where  the  plaintiffs  or  either  of  them  reside." 

The  provisions  of  this  section  are,  as  among  themselves,  cumulative 
rather  than  exclusive  and  suit  may  be  brought  in  a  county  having  any 
•  ne  of  the  designated  conditions.94 

This  section,  however,  is  limited  by  the  general  provisions  of  sec- 
tion three  as  to  nonresident  defendants,  and  if  any  of  the  conditions 
specified  in  it  exist  in  any  county,  suit  must  be  begun  there.95 

For  facts  under  which  venue  was  properly  laid  under  this  section, 
see  cases  below.96 


Suits  Against  Insurance  Companies. 

"Suits  against  fire,  marine,  or  inland  insurance  companies  may  also 
be  commenced  in  any  county  in  which  any  part  of  the  insured  property 
was  situated;  and  suits  against  life  and  accident  insurance  companies 
or  associations  may  also  be  commenced  in  the  county  in  which  the  per- 
sons insured,  or  any  of  them,  resided  at  the  time  of  such  death  or  in- 
jury." 

•'Railway  Co.  v.  Cockrill,  72  Texas,  617,  10  S.  W.,  702. 

"Bradstreet  v.  Gill,  72  Texas,  118,  9  S.  W.,  753. 

95  Railway  Co.  v.  Whitely,  77  Texas,  130,  13  S.  W.,  853. 

M  Shane  v.  Railway  Co.,  28  S.  W.,  456 ;  Railway  Co.  v.  Edloff,  34  S.  W.,  410. 


236  VENUE. 

Venue  Prescribed  by  Particular  Law. 

"Whenever  in  any  law  authorizing  or  regulating  any  particular 
character  of  action,  the  venue  is  expressly  prescribed,  the  suit  shall  be 
commenced  in  the  county  to  which  jurisdiction  may  be  so  expressly 
given."  There  is  no  decision  construing  this  section,  but  doubtless  the 
same  principles  will  govern  here  that  have  been  applied  to  other 
sections  and  the  requirement  is  not  mandatory. 

Quo  Warranto. 

"Suits  against  persons  illegally  claiming  or  holding  any  State  office 
or  appointment  as  contradistinguished  to  a  county  or  district  office, 
shall  be  brought  in  the  district  court  of  Travis  County."97 

Removal  of  Officers. 

Proceedings  for  removal  of  a  county  or  precinct  officer  may  be 
brought  in  the  county  of  the  residence  of  such  officer,98  and  of  a  dis- 
trict attorney  either  in  the  county  of  his  residence  or  in  any  county 
in  his  district  in  which  the  alleged  cause  of  removal  occurred.99 

By  the  State  for  Patent  Pees. 

Suits  for  patent  fees  due  the  State  may  be  brought  in  the  district 
court  of  Travis  County,100  and  as  such  fees  are  a  lien  on  the  land,  it 
would  seem  that  the  suit  might  also  be  brought  in  the  county  where 
the  land  lies.101 

For  Penalties  Under  Railroad  Commission  Act. 

Suit  in  behalf  of  the  State  for  penalties  for  violation  of  the  railroad 
commission  law  shall  be  brought  in  Travis  County.102  Suits  against 

07  Rev.  Stats.  1895,  art.  4349. 
m  Rev.  Stats.  1895,  art.  3542. 
"Rev.  Stats.  1895,  art.  3554. 

100  Rev.  Stats.  1895,  art.  4195. 

101  Rev.  Stats.  1895,  art.  4196. 

102  Rev.  Stats.  1895,  art  4577. 


EXCEPTIONS   TO   EULE.  237 

railroad  companies  by  individuals  for  damage  or  penalties  for  violating 
said  law  may  be  brought  in  any  county  into  or  through  which  the  rail- 
road may  run.103 


Suits  to  Recover  Occupation  Tax  and  Forfeiture. 

Suits  to  recover  occupation  taxes  and  forfeiture  under  Act  of  June 
20,  1897,  may  be  brought  in  the  courts  of  Travis  County.104 


To  Supply  Lost  Records. 

There  is  a  special  statutory  action  for  supplying  lost  records  which 
must  be  brought  in  the  county  where  the  record  was  destroyed.105. 


County  Boundaries— Water  Courses. 

In  all  cases  where  any  part  of  a  river,  water  course,  highway,  road, 
or  street  shall  be  the  boundary  line  between  two  counties,  the  several 
courts  of  each  of  said  counties  shall  have  jurisdiction  in  all  cases  over 
such  parts  of  said  river,  water  course,  highway,  road,  or  street  as  shall 
be  the  boundary  of  such  county,  in  the  same  manner  as  if  such  parts 
of  said  river,  water  course,  highway,  road  or  street  were  within  the 
body  of  such  county.100 


Scire  Facias. 

It  has  been  held  in  several  cases  that  scire  facias  to  revive  a  judg- 
ment is  a  continuation  of  the  old  suit  and  not  the  institution  of  a  new, 
and  must  consequently  be  brought  in  the  county  in  which  the  judg- 
ment sought  to  be  revived  was  rendered.  This  question  first  arose  in 
Waller  v.  Huff,107  but  as  there  was  a  difference  of  opinion  among  the 
members  of  the  court,  and  as  a  decision  of  this  point  was  not  necessary 
to  the  determination  of  the  case,  it  was  left  open.  In  Perkins  v. 
Hume,108  the  question  came  up  in  such  form  as  to  require  a  decision, 

103  Rev.  Stats.  1895,  art.  4575. 

104  Batts'  Stats.,  art.  5049a. 

105  Rev.  Stats.  1895,  art.  4595. 
los  Rev.  Stats.  1895,  art.  1195. 
107  9  Texas,  530,  1853. 

108 10  Texas,  50,  1853. 


238  VENUE. 

and  the  doctrine  stated  in  the  text  was  announced.     This  has  several 
times  been  reiterated.109 


PRACTICE. 

The  plaintiff  determines  in  the  first  instance  in  what  court  he  will 
bring  the  suit.  If  the  court  has  jurisdiction  over  the  subject  matter 
and  the  defendant  makes  no  objection  to  the  venue,  the  court  must  pro- 
ceed to  try  it.  If,  however,  the  plaintiff  selects  a  court  not  in  the 
county  of  the  defendant's  residence,  and  the  defendant  asserts  in  proper 
form  his  privilege  of  being  sued  in  his  home  county,  then  the  court 
should  pass  on  the  matter,  and  unless  the  case  comes  within  one  of  the 
numerous  exceptions,  the  suit  should  be  abated  at  the  plaintiff's  cost. 
The  plaintiff's  petition  should  always  show  that  the  venue  is  properly 
laid.  When  it  does  not,  the  question  may  be  raised  as  one  of  law,  by 
exception.  When  the  plaintiff  does  show  that  the  case  comes  within 
one  or  more  of  the  exceptions,  the  defendant's  privilege  can  not  be 
asserted  by  exception,  but  he  must  traverse  or  especially  deny  the 
facts  in  plaintiff's  petition  and  also  go  further  and  anticipate 
and  negative  all  other  exceptions  applicable  to  the  case  which 
might  exist.110  Such  exception  and  traverse  must  be  embodied 
in  a  plea  in  abatement  which  should  precede  the  answer  to  the  merits. 
The  issues  of  law  thus  raised  are  decided  by  the  judge.  Either  party  is 
entitled  to  a  jury  on  the  issue  of  fact.  On  principle,  the  burden  of 
proof  is  on  the  defendant  to  establsh  the  truth  of  the  facts  in  his  plea  in 
abatement,  but  the  decisions  on  the  subject  are  not  entirely  harmonious. 

In  Blum  v.  Strong,131  the  defendant  Blum  was  sued  in  a  county  other 
than  that  of  his  residence,  the  plaintiff  charging  him  with  conspiracy  and 
combination  with  the  other  defendant,  who  did  live  in  the  county 
where  suit  was  brought.  The  court  says :  "To  these  allegations  the 
constable  only  pleads  a  general  demurrer;  and  the  Blums  their  privi- 
lege of  being  sued  in,  Galveston  County,  that  being  the  place  of  their 
residence,  but  they  did  not  plead  that  the  allegations  of  the  petition  were 
fraudulently  made  with  the  view  of  giving  the  district  court  of  Mc- 
Clellan  County  jurisdiction  of  the  persons  of  the  Blums. 

The  jurisdiction  of  a  court  must  be  determined  by  the  allegations  of 
the  petition,  except  when  it  is  averred  in  the  answer  that  the  allegations 
are  fraudulently  made  for  the  purpose  of  conferring  jurisdiction  and 
there  is  issue  joined,  and  it  is  found  that  the  allegations  were  in 

109  Hopkins   v.   Howard,    12   Texrf,s,   7;    Masterson   v.   Cundiff,   58   Texas,   473; 
Schmidke  v.  Miller,  71  Texas,  103,  8  S.  W.,  638. 

110  Railway  Co.  v.  Graves,  50  Texas,  201;   Stark  v.  Whitman,  58  Texas,  376. 

111  71  Texas,  322,  6  S.  W.,  167. 


PEAOTIOE.  239 

fact  fraudulently  made  for  the  purpose  of  giving  the  court  jurisdiction." 
This  case  seems  to  lose  sight  of  the  difference  between  allegations  as  to 
the  jurisdiction  over  subject  matter,  and  those  regarding  the  defendant's 
privilege  of  being  sued  in  a  particular  county.  No  cases,  either  before  or 
since,  have  enforced  the  rule  announced. 

In  the  later  case  of  Hilliard  v.  Wilson,112  the  Supreme  Court  adopted 
a  decision  by  the  Commission  of  Appeals,  which  takes  just  the  opposite 
view  of  the  subject  and  notes  the  distinction  above  pointed  out  be- 
tween questions  of  jurisdiction  over  the  subject  matter  and  venue.  The 
case,  however,  makes  no  reference  to  Blum  v.  Strong.  The  following  is 
from  the  opinion:  "The  right  to  maintain  a  suit  in  a  county  other 
than  that  in  which  the  statute  fixes  the  venue  must  depend  upon  the 
•existence  of  the  fact  or  facts  which  constitute  an  exception  to  the  statute, 
.and  not  upon  the  mere  averment  of  such  fact  or  facts.  Where  jurisdiction 
of  the  person  of  a  defendant  is  claimed  under  some  exception  to  the 
general  statute  of  venue,  and  he  pleads  the  privilege  of  being  sued  in 
the  county  of  his  domicile  as  provided  by  the  statute,  to  defeat  this 
plea  and  deprive  him  of  that  right,  we  think  that  the  facts  relied  on 
should  not  only  be  alleged  but  proved." 

Graves  v.  Bank,113  was  a  suit  in  the  justice  court.  The  defendant  plead 
in  abatement  that  he  was  sued  in  the  wrong  precinct.  This  was  decided 
against  him  and  error  was  assigned  on  such  decision.  The  court  says : 
"In  disposing  of  this  assignment,  it  will  probably  be  sufficient  to  say  that 
it  does  not  appeear  that  any  evidence  was  offered  to  sustain  the  plea 
of  privilege.  The  mere  averment  of  facts  without  proof  of  them  is  in- 
sufficient to  found  a  judgment  upon."  This  seems  to  clearly  intimate  that 
the  burden  of  proving  his  plea  of  privilege  is  on  the  defendant. 

In  Hobson  v.  Caswell,114  the  Court  of  Civil  Appeals  holds  affirmatively 
that  the  facts  set  out  in  the  plea  must  be  proved  by  the  defendant.  This 
is  the  general  rule  of  practice,115  and  seems  to  be  best  supported  by 
reason  and  authority. 

There  are  numerous  cases  which  substantially  say  that  in  order  that 
the  plaintiff  may  maintain  his  suit  in  a  county  other  than  that  of  the 
defendant's  residence  he  must  bring  his  case  clearly  within  some  statu- 
tory exception.116 

This  only  means  that  in  order  for  plaintiff's  petition  to  be  good  against 
.an  exception  interposing  the  privilege  of  being  sued  in  the  county  of  the 
•defendant's  residence,  it  must  show  on  its  face  some  fact  giving  venue 

m  Hilliard  v.  Wilson,  76  Texas,  184,  13  S.  W.,  25. 

113  77  Texas,  154,  14  S.  W.,  163. 

u*36   S.   W.,   312. 

115 1  Am.  and  Eng.  Enc.  of  Law,  32. 

118  Cohen  v.  Munson,  59  Texas,  237;  Lindheim  v.  Muschamp,  72  Texas,  33,  12 
•S.  W.  125;  Mahon  v.  Cotton,  35  S.  W.,  869. 


240  VENUE. 

in  the  county  in  which  suit  is  brought.  It  does  not  mean  that  the  court 
has  no  jurisdiction  and  its  action  will  be  void  unless  such  facts  ap- 
pear, for  such  construction  would  be  contrary  to  principle  and  also  to 
the  unbroken  line  of  cases  cited  below,  holding  that  failure  to  set  up  his 
privilege  by  the  defendant  is  a  waiver  of  it.  When  the  plaintiff  does  set 
out  in  his  petition  facts  which  bring  his  case  within  one  of  the  ex- 
ceptions, failure  to  prove  such  facts  on  the  trial  on.  the  merits  or  proof 
absolutely  disproving  them  can  not  be  taken  advantage  of  by  the  de- 
fendant, unless  he  has  properly  plead  in  abatement.  This  is  illustrated 
by  the  case  of  Wilson  v.  Adams,117  in  which  plaintiff  declared  upon  a  con- 
tract as  payable  in  the  county  in  which  suit  was  brought.  No  plea  in 
abatement  was  filed  by  the  defendant.  On  the  trial  the  plaintiff  offered 
in  evidence  a  contract  which 'was  not  payable  there.  The  defendant 
could  not  object  to  the  venue  at  that  stage  of  the  case,  and  the  court 
properly  retained  the  case  and  rendered  judgment  for  the  plaintiff. 

The  cases  holding  that  matters  of  venue  are  not  jurisdictional  but  in 
the  nature  of  personal  privileges  which  may  be  waived,  either  expressly 
or  by  failure  to  interpose  a  defense  at  the  proper  time  and  in  the  proper 
manner,  are  too  numerous  to  consider  in  detail.  A  number  of  them  are 
given  below.118 

The  same  principles  apply  to  cases  in  which  the  suit  is  for  recovery  of 
real  estate  and  is  brought  in  a  county  in  which  no  part  of  the  land  lies. 
It  has  repeatedly  been  held  that  the  clause  of  the  statute  applicable  in 
such  cases  is  neither  mandatory  nor  jurisdictional,  and  that  upon  de- 
fendant's failure  to  assert  the  privilege  in  due  order  of  pleading  the 
court  not  only  may  but  must  proceed  with  the  trial.119 

Where  several  persons  live  in  several  counties  and  venue  is  fixed  by 
residence  of  one  of  them,  the  fact  that  such  defendant  dies  pending  the 
litigation  and  the  case  is  dismissed  as  to  his  estate  does  not  furnish 
ground  for  abatement  of  the  suit.120 

In  York  v.  State,121  there  was  an  agreement  in  the  written  con- 
tract of  lease  to  the  effect  that  any  litigation  growing  out  of  the  lease  con- 
tract or  its  breach  might  be  brought  in  the  district  court  of  Travis  County. 

117 15  Texas,   326. 

118 Morris  v.  Runnels,  12  Texas,  177;  Masterson  v.  Ashcom,  54  Texas,  324;  Mas- 
terson  v.  Cundiff,  58  Texas,  474;  Sanger  Bros.  v.  Overmeier,  64  Texas,  58;  De  la 
Vega  v.  League,  64  Texas,  214;  State  v.  Snyder,  66  Texas,  687,  18  S.  W.,  106; 
Bonner  v.  Hearne,  75  Texas,  242,  12  S.  W.,  38;  Fairbanks  v.  Blum,  2  Texas  Civ. 
App.,'  482,  21  S.  W.,  1009;  Board  of  Trade  v.  Cooke,  6  Texas  Civ.  App.,  325,  25- 
S.  W.,  330;  Kemp  v.  Bank,  4  Texas  Civ.  App.,  649,  23  S.  W.,  916;  Campbell  v. 
Wilson,  6  Texas,  392;  Poole  v.  Pickett,  8  Texas,  124. 

118  Ryan  v.  Jackson,  11  Texas,  400;  Morris  v.  Runnels,  12  Texas,  177;  De  la 
Vega  v.  League,  64  Texas,  214. 

120  Lewis  v.  Davidson,  51  Texas,  256. 

121  73  Texas,  651,  11  S.  W.,  369. 


CHANGE   OF   VENUE.  241 

The  defendant  was  a  nonresident  of  the  State.  Suit  was  brought  in  the 
district  court  of  Travis  County  and  notice  given  York  in  Missouri  by  de- 
livery of  citation  and  copy  of  petition,  under  article  1230.  It  was  insisted 
that  this  contract  was  an  agreement  to  enter  a  voluntary  appearance  and 
gave  the  court  jurisdiction  over  the  person  without  the  necessity  of  com- 
plete legal  service.  In  deciding  the  case,  the  Supreme  Court  says : 
"The  proposition  that  the  agreement  contained  in  the  lease  contract 
gives  the  court  jurisdiction  over  the  appellant  we  think  can  not  be  sus- 
tained. The  agreement  may  have  fixed  the  venue,  but  it  could  not 
operate  as  acceptance,  waiver  of  service,  or  appearance."  To  have 
given  the  agreement  the  effect  contended  for  by  the  State,  would 
have  made  it  violate  the  provisions  of  article  1349  of  the  Eevised  Stat- 
utes, prohibiting  agreements  to  accept  service,  enter  appearance,  or  con- 
fess judgment  in  the  contract  or  instrument  sued  on,  or  in  a  contract  or 
instrument  made  prior  to  the  institution  of  the  suit. 


CHANGE  OP  VENUE. 

As  has  been  seen,  if  the  venue  of  the  case  is  properly  laid  by  the 
plaintiff,  the  defendant  can  not  have  the  suit  abated.  If  the  venue  is 
improperly  laid,  the  court  will,  upon  proper  application,  abate  the  suit. 
This  can  be  accomplished  only  by  plea  in  abatement,  preceding  answer 
on  the  merits.  This  terminates  the  suit,  but. leaves  the  cause  of  action 
undetermined  and  the  plaintiff  is  free  to  bring  another  suit  in  the 
proper  county.  In  cases  in  which  the  suit  is  properly  brought  it  is 
sometimes  desirable  to  transfer  the  case  to  another  county  for  trial. 
This  is  called  changing  the  venue  of  the  case.  This  can  not  be  done  ex- 
cept by  authority  of  law.122 

Our  statutes  now  provide  that  the  venue  of  a  case  may  be  changed,  by 
both  parties  acting  together,  without  other  cause  than  their  desire,  or 
upon  the  application  of  either  party  based  upon  sufficient  cause123  or  in 
the  case  of  the  creation  of  a  new  county,  by  the  defendant  alone,  if  he 
resides  in  the  territory  embraced  in  it.124  We  will  consider  these  in 
their  order. 

The  statute  as  to  change  by  consent  requires  it  to  be  by  the  written 
agreement  of  all  parties  to  the  suit  or  their  attorneys  of  record,  filed  in 
the  cause.  This  agreement  should  indicate  the  county  to  which  the  case 
is  to  be  sent;  and  the  limitations  as  to  the  nearest  county  which  are 
prescribed  in  case  of  change  upon  the  application  of  one  party  do  not 

122  Taylor  v.  Williams,  26  Texas,  585;  Wilson  v.  Catchings,  41  Texas,  587. 

123  Rev.  Stats.  1895,  art.   1270. 

124  Rev.  Stats.  1895,  art.  1274. 

16 — Pleading 


242  VENUE. 

apply.  The  change  is  made  by  the  court  by  an  order  entered  on  the 
minutes.125  This  statute  is  operative  in  cases  of  trespass  to  try  title,  not- 
withstanding the  mandatory  language  of  the  statute  fixing  venue  in  such 

cases.125a 


Change  on  Application  of  One  Party. 

Change  by  either  party  is  provided  for  as  follows:126 

"A  change  of  venue  may  be  granted  in  any  civil  cause  upon  applica- 
1  ion  of  either  party,  supported  by  his  own  affidavit  and  the  affidavit  of  at 
least  three  credible  persons,  residents  of  the  county  in  which  the  suit 
is  pending,  for  any  of  the  following  causes : 

"1.  That  there  exists  in  the  county  where  the  suit  is  pending  so 
great  a  prejudice  against  him  that  he  can  not  obtain  a  fair  and  impartial 
trial. 

"2.  That  there  is  a  combination  against  him  instigated  by  influ- 
<2ntial  persons  by  reason  of  which  he  can  not  expect  a  fair  and  impartial 
trial. 

"3.  For  other  good  and  sufficient  cause,  to  be  determined  by  the  the 
court."126* 

This  statute  has  undergone  several  changes  since  its  original  en- 
actment, but  none  of  these  are  essential  to  the  proper  understanding  of 
it  in  its  present  form. 

Disqualification  of  the  district  judge  was  also  formerly  a  ground  for 
change  of  venue;  but  this  is  no  longer  the  case,  as  under  the  present 
law,  parties  may  agree  upon  a  special  judge  to  try  the  cause  or  the  Gov- 
ernor may  appoint  one. 

The  benefits  of  the  statute  quoted  above  are  open  to  each  party  alike, 
whether  he  be  a  plaintiff  who  was  compelled  by  law  to  institute  his  suit 
primarily  in  the  county  from  which  he  now  wishes  to  have  it  trans- 
ferred, or  a  defendant  to  whom  the  statute  does  not  afford  the  privilege 
of  abatement  of  the  suit  brought  against  him  by  plaintiff.  The  circum- 
stances entitling  to  change  and  the  procedure  to  be  pursued  are  the 
same  for  both  parties. 

A  written  application  sworn  to  by  the  party  desiring  to-  change  must 
be  filed,  and  this  must  be  further  supported  by  the  affidavit  of  at  least 
three  credible  persons  who  reside  in  the  county  in  which  the  suit  is  pend- 
ing. The  application  must  be  based  on  these  affidavits,  and  must  state 

^5Rev.  Stats.   1895,  art.   1270. 

126a  Burnley  v.  Cook,  13  Texas,  592;  State  v.  Snyder,  66  Texas,  695;  Watson 
v.  Baker,  67  Texas,  50,  2  S.  W.,  375. 

126  Rev.  Stats.  1895,  art.  1271. 

186a  Act  April  7,  1874,  sec.  1;  14  Leg.,  p.  66;  Pasch.  Dig.,  art.  5885a. 


CHANGE   OF   VENUE.  243 

either  "that  there  exists  in  the  county  where  the  suit  is  pending  so  great  a 
prejudice  against  the  applicant  that  he  can  not  obtain  a  fair  and  im- 
partial trial,"  or  "that  there  is  a  combination  against  him  instigated  by 
influential  persons,  by  reason  of  which  he  can  not  expect  a  fair  and  im- 
partial trial,"  or  he  must  give  some  other  good  and  sufficient  reason  to 
be  judged  of  by  the  court.  The  truth  of  this  application,  and  supporting 
affidavits  can  not  be  inquired  into.  The  only  opposition  that  can  be 
made  by  the  adverse  party  is  either  that  the  application  and  supporting 
affidavits  are  not  sufficient  on  their  face  to  entitle  the  applicant  to  the 
order,  or  that  the  persons  making  the  corroborating  affidavits  are  not 
credible  persons.127 

One  of  the  interesting  questions  involved  in  those  cases  in  which  there 
are  more  than  one  party  on  the  side  of  the  docket  from  which  the  ap- 
plication comes  is  whether  all  must  join  in  the  motion  or  whether  one 
or  more  of  the  plaintiff's  or  defendants,  as  the  case  may  be,  can  change 
the  venue  without  the  joinder  of  all.  This  was  considerel  by  the  Court 
of  Civil  Appeals  at  San  Antonio,  in  the  case  of  Mills  v.  Paul,128  and 
this  conclusion  reached :  that  as  a  general  rule  of  practice,  all  the  par- 
ties, plaintiff's  or  defendants,  as  the  case  may  be,  should  join  in  the  ap- 
plication; but  if,  in  any  particular  case,  it  is  made  to  appear  that  the 
parties  applying  are  all  the  real  parties  to  the  litigation  on  that  side 
of  the  docket,  and  that  the  others  are  merely  formally  joined  or  are 
joined  for  the  purpose  of  hampering  the  applicants  in  the  assertion  of 
their  rights,  the  rule  should  be  relaxed  and  the  motion  by  all  of  those 
really  interested  should  be  entertained.  It  seems  that,  in  this  cast, 
one  of  the  defendants,  who  did  not  join  in  the  application  made  by  his 
codefendants,  affirmatively  objected  thereto;  and,  the  case  not  coming 
within  either  of  the  exceptions,  the  application  was  denied.  -Whether 
or  not  the  fact  that  some  of  the  parties  remain  passive,  refusing  either 
to  join  or  to  oppose  the  application,  would  have  the  same  effect  does  not 
appear.129 

In  Stafford  v.  Blum,130  the  venue  was  changed  upon  the  application  of 
one  of  the  defendants  whose  interests  were  adverse  to  those  of  his  Co- 
defendants  as  well  as  to  those  of  the  plaintiffs.  No  objection  was  raised 
by  any  of  the  parties.  The  suit  was  afterward  dismissed  as  to  the  de- 
fendant who  had  procured  the  change  and  objection  to  the  jurisdiction 
was  then  made,  because  there  was  no  party  before  the  court  who  had 
been  instrumental  in  making  the  change.  The  Court  of  Civil  Ap- 
peals held  that  the  cause  was  properly  retained  by  the  trial  court,  say- 
ing that  its  jurisdiction  was  not  affected  by  the  judgment  of  dismissal. 

127  Rev.  Stats.  1895,  arts.  1271,  1272. 
m  30  S.  W.,  559. 

128  Peters  v.  Bonta,  22  N.  E.,  95;  Ziller  v.  Martin,  54  N.  E.,  331. 
130  7  Texas  Civ.  App.,  294,  27  S.  W.,  12. 


244  VENUE. 

From  these  cases,  it  seems  that  it  is  proper  for  all  the  parties  on  one 
side  of  the  docket  to  join  in  the  application;  that,  in  ordinary  cases, 
an  application  made  by  one  and  acquiesced  in  by  the  others  is  sufficient ; 
that,  if  in  any  case  any  one  of  the  parties  objects  to  the  change  this  ob- 
jection will  prevent  it,  unless  it  be  made  to  appear  that  he  is  a  mere 
formal  or  nominal  party  or  that  there  is  a  substantial  difference  be- 
tween his  rights  and  those  of  the  persons  applying,  so  that  their  interests 
may  be  said  to  be  in  fact  adverse. 


Time  of  Making  Application. 

The  Code  of  Criminal  Procedure  is  quite  explicit  as  to  the  time  of 
making  and  acting  upon  applications  for  change  of  venue  in  criminal 
cases. 

There  are  no  such  provisions  in  the  civil  statutes,  and  the  courts 
have  been  left  to  decide  the  matter  upon  general  principles.  It  has 
been  decided  that  an  order  changing  the  venue  before  one  of  the  de- 
fendants had  been  served  with  process  or  otherwise  subjected  to  the 
active  jurisdiction  of  the  court  is  erroneous  as  to  such  party,131  and 
that  the  judgment  against  him  in  the  second  court  will  be  reversed. 
From  this  it  would  seem  to  follow  that  it  would  be  essential  to  wait  until 
all  necessary  parties  defendant  had  been  served  or  had  appeared.  The 
application  should  not  be  postponed  to  such  time  as  will  interfere  with 
the  dispatch  of  business  and  the  orderly  conduct  of  the  cause.132 

The  right  to  remove  a  cause  upon  the  statutory  grounds  is  a  sub- 
stantial one  which  must  be  recognized  and  enforced  by  the  courts  when 
properly^ insisted  upon;  and  it  has  been  held  that  an  application  filed 
more  than  nine  months  after  the  bringing  of  the  suit,  but  before 
announcing  ready  for  trial,  was  in  proper  time,  since  it  was  shown  not 
to  have  hindered  the  trial.133 

In  another  case,  application  was  allowed  after  an  ineffectual  effort  to 
secure  a  jury.134 

The  application,  like  any  other  matter  presented  to  the  court  for  its 
action,  presents  two  questions  for  consideration, — first,  the  legal  suffi- 
ciency of  the  matters  stated,  if  the  allegations  be  true;  and  second, 
the  truth  of  the  allegations.  Two  of  these  matters  of  law,  viz.,  parties 
and  time,  have  been  considered.  When  an  application,  is  made  by  the 
proper  parties  and  at  the  proper  time,  still  other  questions  may  arise. 
Is  the  application  in  the  proper  form?  Is  it  properly  supported  by 

131  Woodward  v.  Rodgers,  20  Texas,  176;  Andrews  v.  Beck,  23  Texas,  456. 

132  Cook  v.  Garza,  9  Texas,  358. 

133  Ellis  v.  Stearns,  27  S.  W.,  222. 

134  Salinas  v.  Stillman,  25  Texas,  12. 


CHANGE   OF   VENUE.  245 

affidavit  of  a  sufficient  number  of  properly  qualified  persons?  Does  it 
set  forth  a  legal  ground  for  the  change  ? 

There  is  no  prescribed  form  for  the  application,  and  any  instrument 
filed  in  the  case,  having  the  proper  substance  and  supported  by  affi- 
davit as  required,  is  sufficient  as  to  form.  The  supporting  affidavits 
must  be  made  by  the  requisite  number  of  citizens  of  the  county,  must  be 
positive,  and  must  cover  the  facts  relied  upon  as  grounds  for  the  ap- 
plication. 

These  affidavits  may  be  made  before  any  officer  authorized  to  administer 
oaths  and  give  a  certificate  under  seal.  They  must  be  made  so  near  the 
time  of  filing  the  application  that  they  show  the  state  of  affairs  then  ex- 
isting. If  the  application  is  based  on  the  grounds  set  out  in  either  the 
first  or  second  clauses  of  the  statute,  the  better  practice  is  to  follow 
the  statute  exactly,  though  any  other  language  legally  equivalent  will  be 
sufficient.  If  it  is  based  upon  some  other  ground  thought  to  be  covered 
by  the  third  clause  of  the  statute,  its  sufficiency  is  very  largely  within  the 
discretion  of  the  court.  Under  this  clause  the  test  is  the  same  as 
under  the  other  two, — that  is,  do  the  circumstances  alleged  show  that  the 
applicant  could  not  have  a  fair  and  impartial  trial,  or  do  they  destroy 
a  reasonable  expectation  of  such  trial.  The  purpose  of  all  litigation  is  to 
arrive  at  the  truth  of  the  matters  litigated  and  to  impartially  apply  the 
rules  of  law  to  the  truth  so  ascertained;  and  any  fact  or  circum- 
stance, local  in  its  nature,  which  will  defeat  this  purpose  in  any  given 
case,  or  which  destroys  a  reasonable  expectation  of  such  a  result,  is  suf- 
ficient ground  to  sustain  an  application  to  change  the  venue  of  the 
case  from  the  locality  so  affected. 

While  it  is  true  as  above  stated  that,  in  the  nature  of  things,  the  ap- 
plication presents  issues  both  of  law  and  of  fact,  the  Legislature  has,  as  a 
matter  of  public  policy,  very  much  limited  the  authority  of  the  court 
in  the  investigation  of  the  facts.  Indeed,  it  has  entirely  shut  off  any 
traverse  or  contest  of  the  facts  set  up  as  ground  of  the  motion,  and  limits 
the  inquiry  to  the  credibility  of  the  persons  making  the  supporting 
affidavits.135 

This  attack  upon  the  credibility  of  the  compurgators  must  be  made  in 
the  court  in  which  the  motion  is  presented,  and  not  for  the  first  time  in 
the  court  to  which  the  case  has  been  sent,  or  in  the  appellate  courts.136 

When  the  credibility  of  the  persons  making  the  affidavit  is  attacked, 
the  issue  is  tried  by  the  judge  and  not  by  jury. 

The  order  changing  the  venue  must  name  the  court  to  which  the 
cause  is  to  be  removed.  This  court  may  be  selected  by  agreement  of 
the  parties,  but  in  the  absence  of  such  agreement  the  judge  will  send  the 
case  to  the  county,  the  courthouse  of  which  is  nearest  to  the  courthouse 

13SRev.  Stats.  1895,  art.  1272;  Farley  v.  Deslonde,  58  Texas,  589. 
138  Farley  v.  Deslonde,  supra;  Harris  v.  Schuttler,  24  S.  W.,  991. 


246  VENUE. 

of  the  county  in  which  the  case  is  pending,  unless  some  legal  ob- 
jection to  such  county  exists  and  is  shown  to  the  court.  In  the  latter  case 
the  cause  will  be  sent  to  the  county,  not  subject  to  objection,  whose 
courthouse  is  nearest.  The  nearest  courthouse  is  not  necessarily  the  one 
nearest  geometrically,  but  the  one  most  accessible.137 

Venue  may  be  changed  on  motion  of  any  one  or  of  all  of  the  defend- 
ants when,  since  the  institution  of  the  suit,  a  new  county  has  been  organ- 
ized embracing  the  residence  of  such  applicant,  or  applicants,  if  he  or 
they  make  sufficient  affidavit  that  at  the  time  the  suit  was  instituted 
none  of  the  defendants  resided  in  the  limits  embraced  in  the  old  county 
at  the  time  of  making  the  application,  and  that  none  of  them  reside 
therein  at  the  time  of  filing  the  affidavit,  but  that  at  such  dates  they  were 
and  are  residents  within  the  territory  embraced  in  the  new  county.  Upon 
such  affidavit  having  been  filed,  it  is  the  duty  of  the  court  to  change  the 
venue  to  the  new  county,  unless  from  the  record  in  the  case  it  appear* 
that  the  venue  is  properly  laid  in  the  old  county  irrespective  of  the  resi- 
dence of  the  defendants.138 


Effect  of  Change. 

When  an  order  changing  the  venue  of  a  case  is  properly  made,  it  at 
once  removes  the  case  from  the  active  jurisdiction  of  the  court  making 
the  order  and  places  it  in  the  active  jurisdiction  of  the  court  into  which 
the  venue  is  changed,  and  the  former  can  no  longer  make  any  valid  order 
in  it  except  by  the  agreement  of  all  parties  to  be  affected. 

137  Rev.  Stats.  1895,  art.  1273;  Shaw  v.  Cade,  54  Texas,  309;  Loonie  v.  Tillman, 
3  Texas  Civ.  App.,  332,  22  S.  W.,  524. 

138  Rev.  Stats.  1895,  art.  1274. 


DEFINITION    OF   PLEADINGS.  247 

CHAPTEE  XL 

GENERAL   PRINCIPLES    OF    PLEADING. 

To  understand  and  apply  the  general  principles  of  law  with  regard 
to  pleading,  it  is  essential  to  keep  in  mind  the  nature  and  functions  of 
a  court — that  it  is  an  agency  created  by  the  sovereign  to  represent  and  act 
for  it  in  the  redress  of  private  and  public  wrongs.  The  powers  of  this 
agency  and  the  rules  governing  it  in  redressing  public  wrongs  do  not 
come  within  procedure  in  civil  cases  and  need  not  be  considered.  Ex- 
cept in  a  very  few  cases,  such  as  the  appointment  of  guardians  for  the  es- 
tates of  minors  and  others  of  a  similar  nature  specially  provided  for  by 
statute,  these  agencies  of  the  sovereign  do  not  act  of  their  own  motion 
in  civil  cases,  nor  take  the  initiative  in  vindicating  private  rights  and 
redressing  private  wrongs.  If,  therefore,  any  person  desires  to  in- 
voke  the  exercise  of  this  power  in  his  behalf,  he  must  seek  out  the  proper 
•court  and  present  his  complaint  to  it,  and  the  court  thus  applied  to  acts 
upon  such  complaint  and  will  consider  no  facts  not  presented  therein. 
It  is  therefore  necessary  that  the  party  coming  before  the  court  shall 
state  in  his  presentation  of  the  matter  every  fact  which  he  desires  it 
to  take  into  account  in  granting  him  the  relief  which  he  seeks.  He  can 
not  expect  it  to  supply  any  omissions  in  such  presentation,  or  hear  any 
facts  in  addition  to  those  stated  by  him  in  his  complaint,  or  even  to  con- 
sider them  if,  by  any  means,  they  should  be  developed  in  the  trial.  This 
statement  of  facts  to  the  court  by  the  complainant  is  pleading  by  him. 

It  is  one  of  the  fundamental  principles  of  our  law  that  the  rights  of 
no  person  shall  be  adjudged  or  determined  until  he  has  had  fair  legal 
opportunity  to  be  heard,  and  the  court  as  an  agency  of  the  sovereign  can 
not  receive  as  true,  and  act  finally  upon,  the  ex  parte  statement  of  the 
complainant,  but  must  give  an  equal  opportunity  to  the  party  com- 
plained against  to  come  before  it  and  present  to  it  every  matter  which 
he  desires  it  to  consider  in  determining  the  controversy  between  him 
and  the  party  bringing  the  suit.  This  statement  of  his  side  of  the  case  is 
also  pleading.  The  primary  purpose  of  pleading  may  therefore  be  said 
to  be  to  inform  the  court  as  to  the  matters  in  controversy  between  the 
parties  and  to  invoke  the  exercise  of  its  authority  in  settling  this  contro- 
versy. 

DEFINITION  OP  PLEADINGS. 

Many  definitions  of  pleadings  have  been  formulated  by  authors  and 
judges ;  all  of  those  occurring  the  works  with  which  we  are  familiar  are 


248  GENERAL    PRINCIPLES   OF    PLEADING. 

from  common  law  sources,  and  are  largely  colored  by  common  law 
ideas. 

Mr.  Anderson,  in  his  law  dictionary,  gives  many  of  these  from  which 
we  select  the  following: 

"PLEADING.     (1)  A  plea  of  any  nature. 

"(2)  The  statement,  in  a  logical  and  legal  form,  of  the  facts  which 
constitute  the  cause  of  action  or  the  ground  of  defense. 

"The  formal  mode  of  alleging  on  the  record  that  which  would  be  the 
support  or  the  defense  of  the  party  on  evidence.  (Eeed  v.  Brookman,  3 
F.  E.,  159  [1789],  Buller,  J.) 

"  'The  pleadings'  are  the  mutual  alterations  between  the  plaintiff 
and  the  defendant.  (3  Black.  Com.,  293.) 

"These  altercations  are  set  down  and  delivered  into  the  proper  office 
in  writing.  Formerly,  they  were  put  in  by  counsel  viva  voce,  in  court,  and 
minuted  down  by  the  chief  clerk;  whence  in  law-French  the  pleadings 
are  called  the  'parol.'  (3  Black.  Com.,  293.) 

"The  pleadings  are  the  written  allegations  of  what  is  affirmed  on  the 
one  side,  or  denied  on  the  other,  disclosing  to  the  court  and  jury  the 
real  matters  in  dispute.  (Desnoyer  v.  Hereaux,  1  Minn.,  19  [1851].) 

"The  office  of  technical  pleading  is  to  inform  the  court  and  the  parties 
of  the  facts  in  issue :  the  court,  that  it  may  declare  the  law ;  the  parties, 
that  they  may  know  what  to  meet  by  their  proofs.  ( Hill  v.  Mendenhall, 
21  Wall.,  455  [1874],  Waite,  C.  J.)" 

Mr.  Burrill  defines  pleading  as :  "The  individual  allegations  of 
the  respective  parties  to  ah  action  at  common  law  proceeding  from 
them  alternately  in  the  order,  and  under  the  distinctive  names,  follow- 
ing: the  plaintiff's  declaration,  the  defendant's  plea,  the  plaintiff's 
replication,  the  defendant's  rejoinder,  the  plaintiff's  surrejoinder,  the  de- 
fendant's rebutter,  the  plaintiff's  surrebutter;  after  which  they  have  no 
distinctive  names." 

Mr.  Black  defines  pleading  as:  "The  peculiar  science  or  system 
of  rules  and  principles,  established  in  the  common  law,  according 
to  which  the  pleadings  or  respective  allegations  of  litigating  parties 
are  framed,  with  a  view  to  preserve  technical  propriety  and  to  produce 
the  proper  issue. 

"The  process  performed  by  the  parties  to  a  suit  or  action,  in  alternately 
presenting  written  statements  of  their  contention,  each  responsive  to  that 
which  preceded,  and  each  serving  to  narrow  the  field  of  the  contro- 
versy, until  there  evolves  a  single  point,  affirmed  on  the  one  side,  and 
denied  on  the  other,  called  the  'issue.'  upon  which  they  then  go  to 
trial. 

"The  act  or  step  on  interposing  any  one  of  the  pleadings  in  a  cause, 
but  particularly  one  on  the  part  of  the  defendant;  and,  in  the  strictest 
sense,  one  which  sets  up  allegations  of  fact  in  defense  to  the  action. 

"The  name  'pleading'  is  also  given  to  any  one  of  the  formal  written 


DEFINITION    OF   PLEADINGS.  249 

statements  of  accusation  or  defense  presented  by  the  parties  alternately 
in  an  action  at  law;  the  aggregate  of  such  statement  filled  in  any  one 
cause  are  termed  'the  pleadings.' 

"The  oral  advocacy  of  a  client's  cause  in  court,  by  his  barrister  or 
counsel,  is  sometimes  called  'pleading;'  but  this  is  a  popular,  rather 
than  technical,  use. 

"In  Chancery  Practice.  Consists  in  making  the  formal  written  alle- 
gations or  statements  of  the  respective  parties  on  the  record  to  main- 
tain the  suit,  or  to  defeat  it,  of  which,  when  contested  in  matters  of  fact, 
they  propose  to  offer  proofs,  and  in  matters  if  law  to  offer  arguments  to 
the  court.  Story,  Eq.  PL,  Sec.  4,  note." 

Mr.  Gould,  in  his  work  on  pleading,  says :  "Pleadings  are  the  mutual 
altercations  of  the  parties  to  a  suit,  expressed  in  legal  form,  and  in  civil 
actions  reduced  to  writing.  In  a  more  limited  sense,  however,  'pleadings' 
comprehend  only  those  allegations,  or  altercations,  which  are  subsequent 
to  the  count  or  declaration.  In  England  these  altercations  were  an- 
ciently oral,  having  been  offered  viva  voce  by  the  respective  parties  or 
their  counsel  in  open  court;  as  is  still  generally  done  in  the  pleadings 
on  the  part  of  the  defendant,  or  prisoner,  in  criminal  prosecutions.  *  *  * 
The  mutual  altercations  which  constitute  the  pleadings  in  civil  actions 
consist  of  those  formal  accusations  and  denials  which  are  offered  on 
the  one  side  for  the  purpose  of  maintaining  the  suit,  and  on  the  other 
for  the  purpose  of  defeating  it;  and  which,  generally  speaking,  are 
predicated  only  of  matters  of  fact.  For  pleading  is  practically  nothing 
more  than  affirming  or  denying  in  a  formal  and  orderly  manner  those 
facts  which  constitute  the  ground  of  the  plaintiff's  demand  and  of  the  de- 
fendant's defense.  Pleading,  therefore,  consists  in  merely  alleging  mat- 
ters of  fact  or  in  denying  what  is  alleged  as  such  by  the  adverse  party."1 

The  Legislature  of  California  gives  this  definition:  "Pleadings  are 
the  formal  allegations  by  the  parties  of  their  respective  claims  and  de- 
fenses for  the  judgment  of  the  court."2 

The  definition  most  in  favor  in  Texas,  both  with  the  courts  and  the 
Legislature,  is  that  from  Buller,  J.  in  Reed  v.  Brookman,  3  F.  R..  159. 
This  was  adopted  by  our  Supreme  Court  in  the  case  of  Mims  v.  Mitchell,3 
and  quoted  as  follows :  "Our  pleadings  are,  or  are  intended  to  be,  what 
the  English  pleadings  are  defined  to  be :  The  statement  in  a  legal  and 
logical  manner  of  the  facts  which  constitute  the  plaintiff's  cause  of  action, 
or  the  defendant's  ground  of  defense,  or  the  written  statement  of  those 
facts,  intended  to  be  relied  on,  as  the  support  or  defense  of  the  party  in 
evidence."  Its  substance  was  incorporated  in  the  Revised  Statutes  of 
1879,  and  is  retained  in  the  revision  of  1895. 

'"Gould  Plead.,  1,  2. 

2  Code  Civ.  Proc.  Cal.,  sec.  420. 

3  1  Texas,  443,  1846. 


250  GENERAL  PEINCIPLES  OF  PLEADING. 

It  is  an  admirable  definition  of  those  pleadings  which  present  issues, 
and  embodies,  and  tersely  expresses,  a  great  deal  of  the  law  with  reference 
to  them.  It  does  not,  however,  include  pleadings  by  which  issues  either 
of  law  or  fact  are  joined,  and  is,  in  this  respect,  incomplete  as  a  defini- 
tion and  incorrect  as  a  description  under  our  system. 


Suggested  Definition. 

It  is  much  easier  to  criticise  a  definition  given  by  another  than  to 
originate  one  better,  still  I  suggest  the  following  as  a  possible  im- 
provement : 

Pleading  as  a  process  is  the  means  by  which  the  issues  to  be  determined 
in  any  case  are  tendered  and  joined  between  the  parties,  and  made 
known  to  the  court  for  adjudication. 

Pleadings  are  the  formal  statements  by  the  respective  parties  to  a 
suit  of  the  matters  upon  which  they  severally  rely  as  constituting 
the  cause  of  action  or  ground  of  defense  in  the  case,  made  to  the  court  in 
conformity  with  the  rules  of  law. 

A  pleading  is  a  statement  to  the  court  by  either  party  to  a  suit  con- 
taining so  much  of  the  matters  relied  upon  by  him,  as  his  cause  of  action 
or  ground  of  defense,  as  is  proper,  under  the  rules  of  law,  to  be  pre- 
sented at  the  stage  of  the  proceedings  when  the  statement  is  made. 

In  the  courts  of  Texas  in  which  the  pleadings  are  in  writing,  all  such 
matters  as  are  required  to  be  plead  at  any  one  stage  in  the  progress  of 
the  case  should  be  included  in  one  instrument  and  appropriately  desig- 
nated. 

For  the  designation  and  a  discussion  of  the  different  instruments  re- 
quired under  our  system  and  what  is  appropriate  to  be  contained  in 
each  of  the  time  of  its  presentation,  etc.,  see  Chapter  XII,  post. 


PLEADING  AS  A  PROCESS. 

The  plaintiff  institutes  the  suit  and  presents  the  first  pleading.  His 
purpose  in  so  doing,  as  above  stated,  is  to  advise  the  court  and  the  de- 
fendant of  the  right  claimed  by  him,  and  the  supposed  violations  thereof 
by  the  defendant,  and  of  injuries  resulting  or  apprehended  therefrom, 
and  to  request  of  the  court  the  exercise  of  its  power  in  redressing  or  pre- 
venting these  wrongs.  This  redress  or  prevention  necessarily  consists  in 
compelling  the  defendant  to  do  or  forbear  from  doing;  so  that  in  every 
suit  the  plaintiff  seeks  to  induce  the  court  to  compel  the  defendant 
either  to  do  something  for  his  (plaintiff's)  benefit,  such  as  paying  him 
damages  for  injuries  sustained,  or  delivering  into  his  possession  some- 
thing to  which  he  is  entitled  and  which  is  wrongfully  withheld;  or  to 


PLEADING  AS  A  PROCESS.  251 

abstain  from  doing  some  act  in  violation  of  some  legal  right  existing  in 
the  plaintiff.  If  the  defendant,  after  being  duly  cited,  admits  the 
plaintiffs  rights,  and  does  not  desire  to  contest  them,  he  does  not 
come  before  the  court,  and  the  matter  proceeds  without  him  in  con- 
formity with  the  rules  provided  in  such  cases.  But  if  he  does  not 
admit  the  plaintiff's  case,  and  desires  to  prevent  the  court  from  exer- 
cising the  control  over  him  requested  by  the  plaintiff,  it  is  incumbent 
upon  him,  if  he  has  been  duly  served  with  process,  to  advise  the  court 
of  this  fact.  This  he  does  by  filing  his  first  pleading,  in  which  he  must 
set  out  clearly  the  reasons,  either  in  law  or  in  fact,  or  both,  why  he 
should  not  be  so  controlled.  These  reasons  may,  and  in  most  cases  do, 
include  matters  of  denial  both  of  law  and  fact,  and  new  matter  perti-, 
nent  to  the  case  which  in  his  (defendant's)  judgment  should  defeat  the 
plaintiff's  suit.  His  denial  of  the  propositions  of  law  involved  in  the 
plaintiff's  suit  are  presented  by  demurrers;  his  denial  of  the  facts  al- 
leged by  the  plaintiff  are  presented  by  negative  statements  known  as  de- 
nials, general  or  special,  and  the  new  matter  consists  of  facts  pertinent  to 
the  case  not  alleged  by  the  plaintiff,  but  which  the  defendant  desires  the 
court  to  consider.  If  the  defendant's  answer  is  confined  to  negative 
averments  of  law  or  fact,  or  both,  the  pleadings  would  close  here.  If, 
however,  it  contains  new  matter,  the  plaintiff  is  privileged  to  reply  to 
this  by  denial  of  the  propositions  of  law  or  fact,  or  both,  involved  therein, 
or  by  setting  up  new  matter  responsive  thereto.  If  this  pleading  con- 
tains only  negative  averments  the  pleadings  close  here;  if  there  is  new 
matter  contained  in  it,  the  defendant  in  turn  may  reply  to  it  either  by 
denial  of  the  law  or  fact,  or  both,  and  by  new  matter.  If  this  pleading 
contains  only  negative  matter,  the  pleadings  close;  if  new  matter,  the 
plaintiff  is  privileged  to  reply  to  it.  This  process  is  continued  until 
under  the  rules  of  the  particular  system  under  which  the  pleadings  are 
prepared  the  parties  join  issue  or  issues. 


Issues. 

An  issue  is  a  matter,  affirmed  by  one  party  and  denied  by  the  other, 
submitted  to  the  court  for  determination.  These  issues  are  either  of 
law  or  of  fact.  Every  pleading  by  either  plaintiff  or  defendant  which  in- 
troduces new  facts  into  the  case,  no  matter  at  what  stage  filed,  is  a  pre- 
sentation of  issues,  both  of  law  and  of  fact;  filing  such  plea  being  an 
affirmation  by  the  pleader,  first,  that  the  law  is  such,  that  if  the  facts 
stated  be  true  they  should  have  the  effect  desired  by  the  pleader;  and 
second,  that  the  facts  as  so  presented  are  true.  Issues  of  law  are  joined  by 
demurrers,  either  general  or  special,  which  in  effect  say,  "Admitting  the 
facts  to  be  true,  they  are  not  a  sufficient  legal  basis  for  the  relief  sought, 
or  are  not  so  presented  as  to  permit  the  court  to  consider  them."  Issues 


252  GENERAL    PRINCIPLES   OF    PLEADING. 

of  fact  are  joined  by  denials,  general  or  special,  which  in  effect  say, 
"Admitting  the  law  to  be  as  you  contend,  the  facts  alleged  by  you  are 
not  true." 


Combination  of  Issues. 

Great  differences  exist  in  different  systems  as  to  the  number  of  issues 
that  may  be  tendered  in  a  case,  the  manner  of  presenting  them,  the 
number  which  may  be  joined  in  by  the  adverse  party,  and  the  manner 
of  doing  this. 

In  early  common  law  courts  strict  rules  obtained,  both  as  to  the 
joinder  of  causes  of  action  and  tendering  of  issues  by  the  plaintiff; 
and  the  defendant  also  was  compelled  to  elect  whether  he  would  join 
issue  on  the  law  or  the  facts,  and  if  he  chose  the  latter,  must  again  se- 
lect from  among  the  issues  tendered  some  one  upon  which  to  submit  the 
case.  Under  that  system  the  admission  of  facts  by  demurrer  was  not 
tentative,  but  conclusive,  and  if  the  pleader  were  mistaken  as  to  the 
law.  and  the  court  decided  the  demurrer  against  him,  this  was  an  end 
of  the  case.  He  could  not  then  say,  "The  facts  are  not  true ;  therefore,  the 
plaintiff  is  not  entitled  to  the  relief."  In  like  manner  if  he  elected  to 
join  issue  on  the  facts,  this  was  a  practical  admission  that  the  law  was 
as  contended  by  his  adversary,  and  the  facts  being  found  against  him, 
he  could  not  be  heard  as  to  the  law,  except  in  a  few  extreme  cases  where 
the  error  was  fundamental:  also  the  selection  of  the  one  issue  of  fact 
upon  which  the  case  was  to  be  tried  was  a  conclusive  abandonment 
of  all  other  issues  of  fact  involved  in  the  case,  and  the  party  in  whose 
favor  the  single  issue  so  selected  was  decided  obtained  judgment  with- 
out reference  to  other  facts. 

Courts  of  equity  are  less  strict,  and  a  party,  by  observing  the  rules 
of  practice  obtaining  therein,  as  to  the  time  and  manner  of  so  doing, 
can  get  the  advantage  of  demurrers  raising  issues  of  law,  and  answers 
and  pleas  raising  issues  of  fact. 

Combination  of  Issues  in  Texas  System. 

Neither  of  the  systems  above  outlined  was  ever  in  force  in  Texas. 
Prior  to  the  Mexican  Eevolution,  and  for  a  number  of  years  im- 
mediately thereafter,  the  Spanish  civil  la\v  obtained.  This  was  some- 
what modified  by  the  Congress  of  Coahuila  and  Texas,  by  Decree  No.  277, 
passed  April  13,  1834.  The  Supreme  Court  of  the  Eepublic,  in  speak- 
ing of  the  procedure  under  the  law  of  the  Eepublic,  in  the  case  of 
Jones  v.  Nowland,4  says :  "According  to  the  civil  law  each  party 
had  the  privilege  of  two  distinct  allegations  in  order  to  the  presenta- 

4  Dallam,  452. 


STATUTORY  PROVISIONS  AND  RULES.  253 

tion  of  questions  of  law  and  fact  arising:  the  petition  and  the  answer 
and  the  allegations  corresponding  to  the  replication  and  rejoinder  in 
the  introduction  of  the  new  matter  of  excuse,  of  avoidance,  and  the  like. 
In  practice  it  is  necessary  to  present  matters  a  limine  litis,  and  have 
them  determined  prior  to  the  introduction  of  the  merits  upon  the  facts." 
In  the  civil  law  and  its  various  modifications,  much  more  liberal  rules 
obtained  as  to  the  presentation  of  the  whole  controversy  to  the  court. 
This  was  continued  after  the  Texas  independence.  The  plaintiff  is  per- 
mitted much  latitude  in  combining  different  causes  of  action  in  the 
same  suit,  and  equal  liberality  is  extended  with  reference  to  the  pre- 
sentation of  his  facts  in  different  forms  and  combinations,  so  as  to 
enable  him  full  opportunity  to  get  before  the  court  the  real  merits  of  his 
case.  The  same  principle  is  applied  with  reference  to  the  defendant. 
The  admission  of  the  facts  by  demurrer  is  tentative  only  or  for  the  sake 
of  argument.  If  the  court  overrules  the  demurrer,  the  defendant  has  a 
legal  right  to  controvert  the  facts  and  the  plaintiff  is  not  entitled  to  judg- 
ment until  he  has  established  the  truth  of  his  case.  Again,  the  defend- 
ant may  present  as  many  issues  of  fact  as  he  may  desire — either  nega- 
tive, by  way  of  traverse  of  the  allegations  of  the  plaintiff,  or  affirmative 
by  suggesting  new  matter.  In  short,  the  object  of  pleading  in  Texas  is 
to  arrive  at  the  real  truth  of  the  matters  in  controversy  and  enable  the 
court  to  ascertain  and  enforce  the  substantive  rights  of  the  parties,  and  to 
avoid,  as  far  as  possible,  a  decision  of  cases  upon  technical  points  and 
immaterial  issues.5 


STATUTORY  PROVISIONS  AND  RULES. 

The  Texas  statutory  provisions  on  the  subject  of  pleading  have  al- 
ways been  few  and  meager,  and  the  development  of  the  system  has 
been  largely  the  work  of  the  courts,  principally  the  Supreme  Court,  by 
the  decision  of  cases  and  the  promulgation  of  rules.  The  power  to 
make  these  rules  is  inherent  in  the  court  and  is  expressly  recognized 
by  the  Constitution  in  these  words :  "The  Supreme  Court  shall  have 
the  power  to  make  and  establish  rules  of  procedure,  not  inconsistent 
with  the  laws  of  the  State,  for  the  government  of  said  court,  and  the 
other  courts  of  this  State,  to  expedite  the  dispatch  of  business  therein."6 

The  decisions  on  this  subject  extend  from  the  first  session  of  the 
court  after  its  organization  up  to  the  adjournment  of  its  last  term. 
The  rules  on  this  subject  now  in  force  were  promulgated  and  announced 

5  Fowler  v.  Stoneum,  11  Texas,  479;  Ware  v.  Bennett,  18  Texas,  807:   Wallis 
v.  Walker,  73  Texas.  11,  11  S.  W.,  123;  City  of  Sherman  v.  Connor,  88  Texas, 
41,  29  S.  W.,  1053. 

6  Const.,  art.  V,  see.  25. 


254  GENERAL    PRINCIPLES   OF    PLEADING. 

by  the  Supreme  Court  on  the  first  day  of  December,  1877,  Judge  Koberts 
then  being  Chief  Justice,  and  Judges  Moore  and  Gould  Associate  Justices. 
These  rules  have  been  revised  from  time  to  time  in  various  details, 
but  have  never  been  changed  in  purpose  or  policy.  In  their  original  form 
they  are  contained  in  the  appendix  of  volume  47,  Texas  Eeports.  In 
their  present  form  they  appear  in  appendices  to  volumes  84  and  8? 
of  the  Texas  Keports. 

The  statutes  and  rules  now  in  force,  so  far  as  they  pertain  to  pleading 
generally,  are  as  follows : 

"Art.  1181.  The  pleadings  in  all  civil  suits  in  the  district  and  county 
(onrts  shall  be  by  petition  and  answer. 

"Art.  1182.  The  pleadings  in  said  courts  shall  be  in  writing  and 
signed  by  the  party,  or  by  his  attorney,  and  filed  with  the  clerk  of  the 
court." 

"Art.  1183.  The  pleading  shall  consist  of  a  statement,  in  logical 
and  legal  form,  of  the  facts  constituting  the  plaintiff's  cause  of  action, 
or  the  defendant's  grounds  of  defense/' 

These  articles  were  adopted  in  the  exact  form  in  which  they  now  ex- 
ist in  1879 ;  prior  to  that  time  there  had  been  statutory  provisions  practi- 
cally equivalent  to  these,  but  the  language  was  different.7 

"DISTRICT  AND  COUNTY  COURT  EULES. 

"1.  The  pleadings  in  the  district  and  county  courts  shall,  as  pre- 
scribed by  statute,  be  by  petition  and  answer." 

"2.  The  pleadings,  with  the  exception  of  those  presenting  issues  of 
law,  must  be  a  statement  of  facts,  in  contradistinction  to  a  statement  of 
evidence,  of  legal  conclusions,  and  of  arguments.  Facts  are  adequately 
represented  by  terms  and  modes  of  expression  wrought  out  by  long 
judicial  experience,  perpetuated  in  books  of  forms,  in  law  and  equity, 
which,  though  not  authoritatively  requisite,  may  generally  be  adopted  as 
safe  guides  in  pleading.  In  case  of  a  violation  of  this  rule,  to  such  an 
extent  as  to  produce  confusion,  uncertainty  and  unnecessary  length  in 
pleading,  the  court  may  require  the  matter  set  up  to  be  repleaded,  so  as  to 
•exclude  the  superfluous  parts  of  it  from  the  record." 

"9.  The  original  petition,  first  supplemental  petition,  second  sup- 
plemental petition,  and  every  other,  shall  be  contained  in  one  instru- 
ment of  writing,  and  so  with  the  original  answer,  and  each  of  the  sup- 
plemental answers. 

"10.  Each  supplemental  petition  or  answer,  made  by  either  party, 
shall  be  a  response  to  the  last  preceding  pleading  by  the  other  party,  and 
shall  not  repeat  the  facts  formerly  pleaded  further  than  is  necessary 

7  See  Winf red  v.  Gates,  Dallam,  364 ;  Laws  of  the  Fourth  Congress,  p.  88 ;  Hart- 
ley's Dig.,  arts.  639,  669,  671,  688;  Oldham  &  White's  Dig.,  arts.  406,  424-5-6; 
Pasch.  Dig.,  arts.  297,  1424-25,  1427;  Rev.  Stats.  1879,  arts.  1181-2,  1185-6-7. 


THE   TERMS    PETITION   AND   ANSWER   GENERIC.  255 

as  an  introduction  to  that  which  is  stated  in  the  pleading  then  being 
drawn  up.  These  instruments,  to  wit,  the  original  petition  and  its 
several  supplements,  and  the  original  answer  and  its  several  sup- 
plements, shall,  respectively,  constitute  separate  and  distinct  parts  of 
the  pleadings  of  each  party;  and  the  position  of  identity,  by  number 
and  name,  with  the  indorsement  of  each  instrument,  shall  be  preserved 
throughout  the  pleadings  of  either  party. 

"11.  Each  party  who  files  a  supplement  of  any  number  (as  first, 
second,  third,  and  so  on),  shall  give  notice  thereof  by  asking  leave  of 
the  court,  and  filing  the  same  amongst  the  papers  of  the  cause,  with 
the  appropriate  indorsement  thereon,  indicating  its  number  and  name." 


THE  TERMS  PETITION  AND  ANSWER  GENERIC. 

Early  in  the  history  of  the  State  the  Supreme  Court  decided8  that  the 
terms  "petition  and  answer"  as  used  by  Congress  in  the  Act  of  1840,  and 
in  the  subsequent  acts  by  the  Legislature,  were  generic,  indicating  a 
system  of  pleading,  rather  than  the  particular  written  instruments  filed 
by  either  party,  and  that  this  system  was  adopted  in  contradistinction 
and  in  opposition  to  the  common  law.  This  doctrine  has  been  contin- 
uously recognized  and  enforced  by  the  courts  and  Legislature.  In  this 
generic  sense  the  term  "petition"  embraces  all  the  pleadings  filed  by  the 
plaintiff  in  the  progress  of  the  case,  including  the  original  petition  and  the 
various  supplemental  petitions  and  amendments  to  either ;  and  the  term 
"answer"  in  like  manner  embraces  all  the  pleadings  by  the  defendant,  in- 
cluding the  original  answer  and  the  various  supplemental  answers  and 
amendments  to  either. 


THE      SEVERAL      INSTRUMENTS     OF     PLEADING     AND 
THEIR  ORDER. 

The  plaintiff  begins  the  suit  by  preparing  and  filing  with  the  clerk  of 
the  court  his  "original  petition."  This,  of  course,  consists  of  matters 
not  then  before  the  court.  It  must  state  his  cause  of  action,  that  is, 
every  fact  essential  to  make  out  a  prima  facie  case  in  his  favor;  and 
also  the  relief  sought  by  him.  The  first  pleading  by  the  defendant  is 
called  the  "original  answer."  It  consists  in  a  statement  of  all  matters 
relied  on  by  him  in  defense,  plead  at  one  time  and  in  due  order.  If  all 
his  defenses  are  negative  in  their  nature,  the  effect  of  his  answer  will 
be  simply  to  join  issue  with  the  plaintiff  and  the  pleadings  close  here. 
If,  however,  in  addition  to  his  denials  of  law  and  fact  he  desires  to 

8  Under  wood  v.  Parrotft,  2  Texas,  168. 


256  GENERAL   PRINCIPLES   OF   PLEADING. 

suggest  to  the  court  new  facts  to  be  considered  in  connection  with 
those  suggested  by  the  plaintiff,  he  is  privileged  to  do  so.  They  should 
be  included  in  the  same  instrument  as  his  negative  defenses,  all  under 
the  one  designation  "defendant's  original  answer."  Upon  the  filing  of 
such  an  answer,  the  plaintiff  has  the  privilege  of  replying  to  it,  by 
denials  of  law  and  fact,  and  by  suggesting  new  matter.  This  he  does 
by  a  new  pleading  called  "plaintiff's  first  supplemental  petition."  If 
this  is  simply  negative  in  its  nature,  the  pleadings  must  close  here.  If, 
however,  it  sets  up  new  matter,  the  defendant  may  reply  to  it,  either  by 
denials  of  law  and  fact,  or  suggesting  new  matter,  or  both.  This  he 
does  by  a  new  pleading  on  his  part  styled  "defendant's  first  supple- 
mental answer;"  and  this  process  may  continue  indefinitely  as  long  as 
either  party  sets  up  new  matter  pertinent  to  the  last  preceding  pleading 
of  his  adversary,  each  succeeding  instrument  taking  its  designation  as 
plaintiff's  second,  or  third,  or  fourth  supplemental  petition,  defendant's 
second,  or  third,  or  fourth  supplemental  answer,  as  the  case  may  be.  It 
is  not  obligatory  on  either  party  after  the  filing  of  the  original  answer 
by  defendant  to  reply  to  his  adversary's  pleading.  If  it  contain  only 
negative  defenses,  these  are  only  joinders  in  the  issues  already  tendered, 
and  can  not  be  replied  to.  It  would  be  senseless  to  demur  to  a  de- 
murrer, or  to  deny  a  denial.  If  it  contains  new  matter,  -it  is  still  not  obli- 
gatory to  reply,  as  the  statute  provides  that  such  new  matter  shall  be  re- 
garded as  denied  unless  it  is  admitted.9 


BULBS  OF  CONSTRUCTION. 

Before  discussing  the  requirements  as  to  the  manner  of  preparing 
these  pleadings  of  different  kinds,  it  may  be  well  to  consider  briefly  the 
rules  of  construction  which  are  applied  to  pleadings  generally,  and  also 
the  effect  of  defects  of  certain  kinds.  It  is  apparent  that  there  are  a  great 
many  different  ways  of  stating  the  same  matter,  and  that  some  of  these 
are  much  better  than  others,  and  therefore  there  will  be  great  differ- 
ences in  the  form  and  merits  of  different  instruments  filed  in  different 
cases,  intended  to  be  considered  as  pleadings. 

It  may  be  stated  as  a  universal  rule  that  however  defective  a  plead- 
ing may  be  in  form,  if  it  contain  every  material  fact  which  the  court 
and  the  adverse  party  should  be  informed  of,  it  will  be  prima  facie 
good,  and  the  court  of  its  own  motion  will  not  disregard  it,  nor  can  the 
other  party  to  the  suit  have  it  stricken  out  or  disregarded  upon  a  gen- 
eral suggestion  of  error,  but  if  he  desires  the  information  in  more  exact 
and  artistic  form,  he  must  point  out  to  the  court  and  adverse  party  the 
formal  defects  in  the  paper  filed  and  thus  have  it  corrected.  Eecogniz- 

"Bev.  Stats.  1895,  art.   1193. 


PLEADINGS   PRESENTING   ISSUES.  257 

ing  this  distinction  between  substance  and  form,  the  rules  of  pleading 
require  different  methods  of  presenting  objections  to  them  respectively. 
Issues  as  to  the  substance  of  the  petition  may  be  raised  by  general  de- 
murrer, which  suggests  to  the  court  that  the  facts  contained  in  the 
pleading  demurrer  to,  if  true,  do  not  have  the  legal  effect  claimed  by 
the  pleader  and  do  not  entitle  him  to  the  action  asked  thereon.  On 
the  issue  thus  tendered,  the  only  inquiry  is,  does  the  pleading  demurred 
to,  construed  reasonably,  contain  all  the  facts  necessary  to  support  the 
pleader's  case,  and  if  this  is  answered  in  the  affirmative,  the  demurrer 
will  be  overruled,  however  unsatisfactory  the  form  of  the  pleading  may 
be.  Issues  of  form,  however,  may  be  raised  by  special  demurrers,  which 
point  out  the  formal  defects  complained  of,  and  when  so  raised  must 
be  considered  by  the  court.  Unless  the  demurrer  does  point  out  these 
defects  it  is  in  effect  only  a  general  demurrer  whatever  the  pleader 
may  style  it. 

The  rules  of  construction  which  apply  to  the  petition  are  different 
under  these  different  forms  of  objection.  In  considering  a  general 
demurrer,  every  reasonable  intendment  and  meaning  favorable  to  the 
pleader  preparing  the  instrument  will  be  indulged  and  if  the  words 
used  are  capable  of  any  reasonable  interpretation  sustaining  the  in- 
strument, this  will  be  adopted.  On  the  other  hand,  in  considering  a 
special  demurrer,  the  pleading  will  be  construed  most  strongly  against 
the  pleader  preparing  it.  It  results  that  if  a  pleading  is  capable  of 
two  constructions,  one  good  and  the  other  bad,  if  it  is  attacked  by 
general  demurrer,  the  construction  sustaining  it  will  be  given,  and  it 
will  be  held  good;  if  by  special  demurrer  pointing  out  the  defect,  the 
construction  defeating  it  will  be  given,  and  it  will  be  held  bad. 

From  these  general  observations  it  is  apparent  that  under  our  system 
only  those  rules  which  relate  to  the  substance  of  pleadings  are  im- 
perative, and  that  those  which  relate  to  form  only  will  be  disregarded, 
unless  called  to  the  attention  of  the  court  in  proper  time  and  manner, 
and  that  even  then  an  error  of  the  court  in  overruling  a  special  de- 
murrer would  not  be  fundamental  error,  if  the  substance  of  the  plead- 
ing demurred  to  were  good. 


PLEADINGS  PRESENTING  ISSUES. 

Coming  now  to  the  rules  governing  the  preparation  of  pleadings,  we 
find  by  far  the  most  important  relate  to  those  instruments  which  pre- 
sent issues  to  the  adverse  party  by  setting  out  facts  not  already  in  the 
record.  These  we  will  now  consider. 

The  statute  quoted  above  requires  that  all  pleadings  presenting 
issues  "shall  consist  of  the  statement,  in  logical  and  legal  form,  of 
17 — Pleading 


258  GENERAL    PRINCIPLES   OF   PLEADING. 

the  facts  constituting  the  plaintiffs  cause  of  action  or  the  defendant's 
ground  of  defense,"  and  the  rules  require  that  "pleadings,  with  the 
exception  of  those  presenting  issues  of  law,  must  be  a  statement  of 
facts  in  contradistinction  to  a  statement  of  evidence,  of  legal  conclusions, 
and  of  arguments.  Facts  are  adequately  represented  by  terms  and 
modes  of  expression  wrought  out  by  long  judicial  experience,  per- 
petuated in  books  of  forms  in  law  and  equity,  which  although  not  au- 
thoritatively requisite  may  be  generally  adopted  as  safe  guides  in 
pleading." 

The  general  rules  on  this  subject  may  be  summarized  as  follows : 

1.  The  pleadings  must  state  facts  and  should  not  state  law,  nor  con- 
clusions of  law,  nor  evidence. 

2.  The  facts  must  be  fully  set  forth,  omitting  nothing  material  to 
the  cause  of  action  or  defense  being  plead. 

3.  All  the  facts  in  each  count  must  be  consistent  with  each  other 
though  they  need  not  be  single. 

4.  The  several  counts  need  not  be  consistent  with  each  other. 

5.  In  stating  facts,  the  averments  should  be  concise,   direct,  cer- 
tain  and   logically   arranged.     A   pleading   should   never    be   verbose, 
prolix,  ambiguous,  nor  leave  material  facts  to  be  inferred. 

Those  rules  in  which  Hie  term  "must"  is  used  are  imperative,  and  a 
violation  of  any  one  of  them  except  No.  3  will  be  fatal  on  general 
demurrer.  The  others  are  directory,  and  will  not  be  enforced  unless 
the  violation  is  called  to  the  attention  of  the  court  by  special  demurrers. 

6.  The  facts  alleged  must  truly  represent  the  case  and  conform  to 
the  evidence  to  be  introduced. 


WHAT  ARE  FACTS. 

Mr.  Webster  defines  fact  as:  An  effect  produced  or  achieved;  any- 
thing done  or  has  come  to  pass;  an  event;  a  circumstance.  I 
would  add,  for  greater  clearness, — a  condition  existing  or  that  has 
existed.  This  includes  everything  that  is,  whether  material  or  spiritual, 
concrete  or  abstract.  If  it  can  be  affirmed  of  any  thing  or  condition 
that  it  is,  or  has  been,  such  thing  is  a  fact.  This,  of  course,  embraces  all 
laws  and  legal  conclusions  and  can  not,  without  qualification  be  accepted 
as  a  correct  definition  of  the  term  in  the  use  and  connection  now  under 
consideration. 

In  common  parlance  fact  and  truth  are  closely  connected,  and  a 
statement  of  a  fact  is  usually  understood  to  be  a  statement  which  is 
true.  This  is  the  result  of  a  very  natural  mental  process,  for  as  a  fact 
primarily  is  a  thing  actually  existing,  something  which  has  really 
taken  place,  or  is  now  actually  transpiring,  it  is  very  easy  to  under- 
stand how  the  idea  of  actual  existence  or  truth  should  come  to  be 


WHAT   AKE   FACTS.  259 

looked  upon  as  essential  to,  and  included  in,  all  statements  regarding 
facts.  In  pleading,  the  use  of  the  term  "statement  of  facts"  has  been 
extended  from  this  primary  meaning  of  statements  truly  importing 
actual  existence  of  the  thing  spoken  of,  to  include  all  statements  re- 
garding such  actual  existence,  whether  true  or  false,  especially  such 
as  affirm  the  real  existence  of  any  thing  or  condition. 

Probably  the  process  was  about  this:  A  fact  was  a  real  existence, 
and  every  statement  which  truly  affirmed  the  real  existence  of  any- 
thing was  a  statement  of  fact.  Some  party  would  make  a  statement 
which  represented  his  honest,  though  mistaken,  belief  as  to  a  real 
existence  or  fact,  and  this  would,  from  his  point  of  view,  be  a  fact. 
This  was  not  strictly  a  proper  use  of  the  word;  still,  as  there  was  no 
one  to  determine  definitely  whether  the  statement  were  true  or  false, 
it  could  not  be  settled  whether  it  was  in  strictness  a  statement  of  a 
fact  or  not.  So,  the  use  of  the  phrase,  "a  statement  of  facts,"  was 
extended  until  now  it  embraces  all  statements  regarding  facts,  whether 
such  statements  be  really  true  or  false,  and  may  be  said  to  be  a 
statement  of  matters  claimed  as  facts,  or  as  real  things,  acts,  or  condi- 
tions. 


Legal  Use. 

The  word  "fact"  seems  to  have  several  distinct  meanings  in  law 
which  must  be  carefully  kept  apart. 

In  the  law  of  evidence  it  is  said  that  a  witness  must  testify  only  to 
facts  and  not  to  conclusions  or  inferences.  Here  the  word  means  mat- 
ters actually  within  the  personal  knowledge  of  the  witness,  or  claimed 
by  him  so  to  be.  The  statement  to  which  he  swears  may  not  be  true, 
but  if  he  claims  to  have  direct  information  regarding  it,  received  di- 
rectly from,  his  senses  and  not  reached  as  the  result  of  reasoning  or 
deduction,  the  statement  is  admissible.  If,  however,  he  undertake  to 
state  a  deduction  or  inference  drawn  by  him  from  other  matters,  he  is 
not  permitted  to  do  so,  however  correct  and  true  the  conclusions  might 
be.  Here  the  distinction  is  between  those  things  which  the  witness 
claims  actually  took  place  within  his  own  experience  or  observation,  and 
as  to  which  he  depends  upon  his  memory  for  information,  on  the  one 
hand,  which  are  admissible  as  facts,  and  those  things  the  existence  of 
which  he  did  not  experience  or  observe,  and  does  not  remember,  but 
which  he  concludes  or  infers  did  exist  because  of  certain  other  mat- 
ters which  he  takes  as  the  basis  of  his  reasoning,  on  the  other,  which 
are  excluded  as  conclusions.  The  statement  made  by  the  witness  as 
to  his  past  experience  or  observation  may  be  false,  either  wilfully  or 
inadvertently,  yet  it  is  considered  a  statement  of  a  fact  and  admitted 
to  be  judged  of  by  the  court  or  jury.  His  conclusion  might  be  per- 


260  GENERAL   PRINCIPLES   OP   PLEADING. 

fectly  correct  and  true,  yet  it  is  regarded  as  a  statement  of  opinion 
and  excluded,  because  the  law  has  not  entrusted  the  witness  with  the 
right  to  make  inferences  as  to  truth  of  facts,  but  has  left  that  to  the 
jury. 

In  pleading  fact  has  a  different  significance.  When  it  is  said  that 
the  pleader  must  state  facts,  it  is  never  intended  to  limit  his  state- 
ments to  matters  within  his  own  knowledge ;  indeed,  the  opposite  is  his 
duty — to  get  all  the  information  he  can  as  to  the  case,  to  group  and 
combine  the  various  items  according  to  their  actual  and  legal  rela- 
tions and  draw  therefrom  correct  deductions,  and  thus  ascertain  what 
the  issuable  facts  in  the  case  really  are,  and  to  state  these  issuable 
facts  in  his  pleadings.  Using  malice  as  an  illustration,  no  witness  is 
permitted  to  state  on  the  stand  that  a  killing  was  malicious.  This  in- 
volves an  inference  from  the  facts  as  to  the  real  nature  of  the  matter 
under  investigation  which  the  jury  alone  may  draw,  but  he  must  state 
all  the  facts  within  his  knowledge,  and  let  the  jury  draw  the  conclu- 
sion of  malice  or  not  as  it  sees  fit.  A  different  rule  applies  to  the 
pleader.  He  considers  the  detailed  evidence,  concludes  that  it  shows 
malice,  and  so  charges  in  the  indictment  that  the  killing  was  done  with 
malice  aforethought.  The  law  places  the  responsibility  of  draw- 
ing this  conclusion  on  the  pleader.  The  purpose  is  to  bring  before 
the  court  the  matters  in  controversy  as  contended  for  by  each  party. 
Whether  the  party  committing  the  homicide  was  really  actuated  by 
malice  is,  of  course,  a  mixed  question  of  law  and  fact  all  the  while, 
and  the  same  question  is  presented  to  both  the  pleader  and  the  witness, 
but  as  the  one  is  charged  with  the  duty  of  deciding  and  presenting 
the  facts  upon  which  his  client  relies,  he  is  permitted  to  state  the 
existence  of  malice  as  one  of  these  facts  so  contended  for,  and  to 
prove  it  by  any  legitimate  testimony  he  may  procure,  and  as  the  other 
has  nothing  to  do  with  deciding  the  facts,  or  deciding  what  shall  and 
what  shall  not  come  before  the  court  for  investigation,  but  is  only  to 
aid  the  court  and  jury  in  deciding  the  real  truth  of  the  controversy 
as  presented  by  the  parties,  he  can  state  only  matters  within  his 
knowledge,  and  is  forbidden  to  state  any  inferences  or  deductions 
he  may  make.  In  other  words,  it  is  the  province  of  the  pleader  to  state 
all  the  matters  of  fact  properly  involved  in  his  side  of  the  case, 
whether  within  his  own  knowledge  or  not,  as  a  basis  for  an  intelligent 
inquiry  and  investigation  by  the  court  into  the  true  state  of  affairs.  It 
is  the  province  of  the  witness  to  aid  the  court  in  this  investigation  by 
stating  those  matters  only  which  are  within  his  own  personal  knowl- 
edge. 

The  term  "fact,"  as  used  regarding  evidence,  never  includes  con- 
clusions or  deductions;  in  the  exceptional  cases  in  which  these  are 
received  from  witnesses  they  are  denominated  opinion  evidence. 

In  pleading,  no  statement  which  sets  out  or  discloses  directly  and 


WHAT   AEE   FACTS.  261 

positively  the  existence  or  non-existence  of  any  thing  or  condition,  the 
existence  or  non-existence  of  which  may  be  established  by  proof,  with- 
out involving  the  determination  of  any  question  of  law,  can  properly 
be  classed  as  a  conclusion.  The  fact  averred  may  be  a  very  comprehen- 
sive one,  entirely  inadequate  to  give  to  the  court  and  adverse  party, 
the  clear  and  accurate  information  to  which  they  are  entitled,  and 
the  pleading  may  be,  and  in  many  cases,  bad  for  uncertainty,  but 
the  averment  would  still  be  a  statement  of  fact. 


Fact— Definition  in  Law  of  Pleading. 

What  then  is  a  fact  within  the  rules  of  pleading  under  consideration. 
In  the  present  state  of  the  authorities,  this  is  a  most  difficult  ques- 
tion to  answer,  though  as  an  original  proposition  it  would  not  seem 
necessarily  to  be  so. 

I  suggest  the  following  as  approximating  a  satisfactory  solution: 

Whenever  the  standards  to  which  resort  must  be  had  to  determine 
whether  a  thing  has  been  done,  or  has  come  to  pass,  or  is  now  taking 
place,  or  that  a  certain  condition  once  existed  or  now  exists,  are  not 
legal  but  exist  in  pais,  the  statement  that  such  thing  has  been  done, 
or  has  come  to  pass,  or  is  now  transpiring,  or  that  such  condition  did 
exist  or  now  exists  is,  on  principle,  an  averment  of  fact.  On  the  other 
hand,  whenever  the  standards  which  must  be  used  to  determine  the 
matter  do  not  exist  in  pais  but  are  legal,  then  whether  such  thing  has 
been  done,  or  has  come  to  pass,  or  such  condition  has  existed  or  does 
exist  is  a  mixed  question  of  law  and  fact.  Under  this  conception,  a 
fact  would  be  any  act,  event,  circumstance  or  condition  capable  of 
proof  by  evidence,  direct  or  circumstantial,  without  the  necessity  of 
applying  any  rule  of  law  as  a  standard  by  which  to  determine  the 
question  of  its  existence  or  nonexistence,  and  a  mixed  question  of 
law  and  fact — frequently  called  a  conclusion  of  law — would  exist 
whenever,  in  addition  to  the  proof  required  to  establish  the  physical 
facts,  some  legal  rule  or  standard  must  be  applied,  in  order  to  de- 
termine the  existence  or  nonexistence  of  such  act  or  condition. 

The  idea  intended  to  be  conveyed  may  be  made  plainer  by  a  few  il- 
lustrations. The  statement  that  A  killed  B  is  a  statement  of  fact, 
pure  and  simple.  The  killing  of  one  person  by  another  is  a  physical 
fact,  its  existence  or  nonexistence  is  determinable  by  testimony  and 
standards  involving  no  legal  rules.  The  statement  that  A  murdered  B, 
however,  is  a  mixed  question  of  law  and  fact,  for  all  homicide  is  not 
murder,  and  whether  or  not  a  particular  killing  is  murder  depends 
upon  the  facts,  judged  by  legal  standards,  and  these  standards  and 
their  application  are  embraced  in  the  statement  that  any  par- 
ticular killing  was  murder.  Again,  a  statement  that  A  took  B's 


262  GENERAL   PRINCIPLES   OF   PLEADING. 

purse  is  one  of  fact,  but  that  A  stole  B's  purse  is  a  mixed 
question  of  law  and  fact,  involving,  first,  the  existence  of  cer- 
tain facts,  and  second,  the  application  of  legal  rules  to  the  facts, 
and  a  conclusion  of  law  drawn  therefrom.  Again,  that  A  made 
a  false  statement  of  a  material  matter  to  B  upon  a  matter  pecu- 
liarly within  A's  knowledge,  as  to  which  B  was  ignorant,  and  upon 
which  statement  A  designed  that  B  should  act,  and  upon  which  B 
did  in  fact  rely  and  act,  to  his  injury,  are  statements  of  fact,  sus- 
ceptible of  proof,  and  to  which  the  court  would  apply  the  legal  rules 
and  standards  of  judgment.  But  that  A  defrauded  B  is  a  mixed  mat- 
ter of  law  and  fact,  because  it  embraces  necessarily  a  determination 
of  what  in  law  constitutes  fraud. 

I  have  found  no  Texas  case  even  attempting  a  definition.  An  early 
case  in  the  Supreme  Court  of  New  York10  has  this  syllabus: 

"In  an  action  under  the  Code,  to  recover  the  possession  of  real  estate, 
the  facts  set  forth  in  the  complaint  must  show  that  the  plaintiff  has  a 
legal  title  to  the  premises  in  question;  the  mere  averment  that  he 
has  such  a  title  is  insufficient. 

"Facts  constituting  a  cause  of  action,  or  a  defense,  in  the  sense 
of  the  Code,  are  physical  facts,  capable  of  being  established  by  oral 
or  documentary  proof,  not  propositions,  which  are  true  in  law." 

And  in  the  opinion  uses  this  language: 

*  *  *  "I  incline  strongly  to  the  belief  that  the  errors,  which  too 
frequently  occur  in  pleadings  under  the  Code,  must  be  ascribed  to 
a  mistaken  interpretation  of  the  words  'facts  constituting  the  cause  of 
action/  or  'a  defense;'  nor  is  the  source  of  the  mistake  difficult  to  be 
explained.  In  writing,  and  in  conversation,  the  term  'fact'  is  fre- 
quently, and  perhaps  not  improperly,  applied  to  an  abstract  proposi- 
tion, a  proposition  true  in  morals  or  in  law,  but  of  which  the  truth 
depends,  not  upon  testimony,  but  upon  authority  or  reasoning,  and  in 
this  sense  of  the  term  it  is  obvious  that  every  abstract  conclusion  of 
law  is  a  fact.  That  such  a  conclusion,  however,  although  just  in  itself 
is  not  a  fact  within  the  meaning  of  the  Code,  is  evident  upon  slight 
reflection,  and  a  single  example  will  be  sufficient  to  prove. 

"There  is  no  apparent  impropriety  in  saying,  'it  is  a  fact  that  Peter 
owes  John  a  sum  of  money/  but  who  will  assert  that  a  complaint 
would  be  good  that  should  aver  that  the  defendant  owes  the  plaintiff 
a  certain  sum  of  money  for  which  the  plaintiff  demands  judgment, 
without  alleging  a  single  fact  from  which  the  debt  could  arise?  Yet, 
if  the  words  of  the  Code,  'Facts  constituting  a  cause  of  action/  refer 
to  conclusions  of  law,  and  not  to  the  facts  from  which,  if  admitted  or 
proved,  the  conclusions  are  to  be  drawn,  then  such  a  complaint  would 

"Xawrence  v.  Wright,  —  Duer,  — 


WHAT   ARE    FACTS.  263 

be  free  from  objection.  It  is  really  no  worse  than  that  now  before 
me,  nor  than  many  that  almost  daily  pass  under  our  observation. 

"All  these  errors  in  pleading  will  be  avoided  if  it  is  constantly  re- 
membered that  the  facts  which  the  Code  requires  to  be  set  forth  are 
not  true  propositions,  but  physical  facts,  capable  as  such,  of  being  es- 
tablished by  evidence,  oral  or  documentary,  and  from  which,  when 
so  established,  the  right  to  maintain  the  action,  or  the  validity  of  a 
defense,  is  a  necessary  conclusion  of  law — and  a  conclusion  which  the 
court  will  draw,  and  which  it  is  quite  unnecessary  that  the  pleader 
should  state." 

This  comes  nearer  an  intelligent  statement  of  the  matter  than  any 
case  that  I  have  found,  and  I  think  a  careful  study  and  thorough  under- 
standing of  it  will  aid  very  much  the  Texas  student  and  lawyer, 
although  the  particular  point  decided  is  not  the  law  here. 

The  definition  given  above,  and  the  rule  as  thus  interpreted  are  not  in 
harmony  with  a  number  of  decisions,  but  they  seem  to  be  correct  in 
principle,  and  if  so,  should  be  applied  in  all  instances  in  which  the 
precedents  are  not  too  strong  against  them.  There  are  numerous  phrases 
and  terms  which,  tested  by  the  above  rule  are  mixed  matters  of  law 
and  fact,  but  the  use  of  which  in  pleading,  as  statements  of  issuable 
facts,  is  well  established  by  custom  and  sanctioned  by  the  courts,  and 
hence  is  permissable.  Many  of  them  are  convenient,  and  there  would 
be  no  practical  advantage  in  enforcing  the  rule  against  them.  The  fol- 
lowing are  examples: 

"Probable  Cause''1  in  a  suit  for  malicious  prosecution.  That  "prob- 
able cause"  is  a  mixed  matter  of  law  and  fact  has  been  expressly  de- 
cided in  numerous  cases.  In  Landa  v.  Obert,*1  the  court  says: 

"What  facts  and  circumstances  amount  to  probable  cause  is  a  pure 
question  of  law.  Whether  they  exist  or  not  in  any  particular  case,  is  a 
pure  question  of  fact.  The  former  is  exclusively  for  the  court,  the 
latter  for  the  jury.  When  the  facts  are  in  controversy,  the  question 
of  probable  cause  must  necessarily  go  to  the  jury,  and  then  the  court 
must  give  such  instructions  as  will  enable  them  to  draw  the  correct 
conclusion  from  the  facts  as  they  find  them  and  the  law  thus  given," 
citing  several  authorities. 

In  Shannon  v.  Jones,12  a  suit  for  damage  for  malicious  prosecu- 
tion, the  Supreme  Court,  through  the  Commission  of  Appeals,  says: 
"That  the  question  of  malice  is  one  of  fact  and  existence  or  nonexistence 
of  probable  cause  one  of  law  and  fact  are  rules  as  old  as  the  action 
out  of  which  they  grew." 

Still  it  is  held  that  in  pleading  an  allegation  of  want  of  probable 
cause  is  a  statement  on  issuable  fact,  and  the  circumstances  need  not  be 

n  45  Texas,  542,  1876. 

"76  Texas,  147,  13  S.  W.,  477. 


264  GENERAL   PRINCIPLES   OF   PLEADING. 

given.  This  is  announced  in  Griffin  v.  Chubb,13  and  reiterated  in 
Sutor  v.  Wood,1*  in  these  words:  "The  want  of  probable  cause  and 
malice  were  issuable  facts  and  not  mere  conclusions  of  law,  and  plain- 
tiff was  not  required  to  go  beyond  the  averments  of  these  facts  and 
to  allege  the  evidence  by  which  he  expected  to  establish  them/' 

It  is  true  that  in  each  of  these  cases  the  points  presented  rose  upon 
introduction  of  testimony  and  not  upon  questions  of  pleading.  This 
may  make  a  distinction,  as  the  Court  of  Civil  Appeals  has  held  to  be 
the  case  in  regard  to  fraud.15 

It  is  also  settled  that  it  is  not  necessary  in  a  suit  for  personal  prop- 
erty to  aver  the  facts  constituting  title.  The  general  allegation  that 
the  plaintiff  is  the  owner  of  the  property  and  is  entitled  to  the  pos- 
session as  against  the  defendant,  or  is  entitled  to  damages  for  its  injury 
or  conversion,  is  all  that  is  necessary.16 

The  same  rule  applies  in  actions  of  trespass  to  try  title  to  real 
estate.17 

The  same  is  true  of  malice,  good  faith,  conversion,  seizen  and  pos- 
session, and  numerous  other  mixed  matters  of  law  and  fact.  A  dif- 
ferent rule  applies  as  to  fraud,18  to  charges  of  excesses  and  cruelty  in 
divorce  cases,19  to  unjust  discrimination  against  railroad  companies,20 
to  "good  defense"  in  injunction  cases,21  and  in  many  other  instances 
which  will  more  fully  appear  from  the  extracts  from  Texas  cases  given 
in  subsequent  portions  of  this  chapter. 

When  we  consider  the  other  side  of  this  question,  that  the  allega- 
tion in  the  pleadings  must  be  of  fact  and  not  of  evidence,  we  find 
difficulties  of  another  kind  awaiting  us. 

Our  language  is  such  that  some  words  include  only  one  idea  and 
others  are  more  comprehensive  in  their  significance.  In  introducing 
proof  the  general  rule  is  that  it  is  desirable  to  use  as  simple  terms  em- 
bracing as  few  ideas  as  possible.  But  the  rule  in  pleading  is  the  re- 
verse, and  terms  should  be  selected  which  are  as  comprehensive  as  con- 

13  7   Texas,    603. 

14  76  Texas,  403,  13  S.  W.,  321. 

"Avery  v.  Mansur  &  Tebbetts  Imp.  Co.,  37   S.  W.,  467. 

"Raines  v.  Herring,  68  Texas,  472,  5  S.  W.,  369;  Tillman  v.  Fletcher,  78  Texas, 
675,  15  S.  W.,  161. 

"Rev.  Stats.,  art.  4786;  Snyder  v.  Nunn,  66  Texas,  257,  18  S.  W.,  340;  Day  Co. 
v.  State,  68  Texas,  535,  4  S.  W.,  865;  Tevis  v.  Armstrong,  71  Texas,  62,  9  S.  W., 
134;  Rains  v.  Wheeler,  76  Texas,  393,  13  S.  W.,  324. 

"Hendrix  v.  Nunn,  46  Texas,  148,  1876;  Brown  v.  Mitchell,  75  Texas,  9,  12  S. 
W.,  606,  1889. 

"Wright  v.  Wright,  3  Texas,  168,  1848. 

20  Railway  Co.  v.  Gallaher,  79  Texas,  687,  15  S.  W.,  694. 

21  Sharp  v.  Schmidt,  62  Texas,  265,  1884. 


WHAT  ABE   FACTS.  265 

sistency,  certainty  and  directness  will  admit.  To  illustrate,  it  is  uni- 
versally held  a  good  allegation  of  the  execution  of  a  written  instru- 
ment to  aver  that  the  party  charged  with  liability  upon  it  "executed 
and  delivered"  it;  while  to  prove  the  execution  of  such  an  instru- 
ment where  it  is  properly  in  issue,  requires  evidence  of  the  physical 
fact  of  signing  and  passing  over  the  paper  under  circumstances  show- 
ing an  intent  to  be  bound  by  it,  and  to  part  with  dominion  over  it. 
Again,  if  it  is  desired  to  avoid  a  contract  on  the  ground  of  mental  in- 
capacity of  the  alleged  obligor  at  the  date  of  its  execution,  it  would 
be  sufficient  to  plead  in  general  terms  that  at  said  time  he  was  of  un- 
sound mind,  incapable  of  appreciating  the  legal  consequences  and  re- 
sults of  his  action;  while  to  prove  this  condition  might  require  most 
minute  examination  into,  and  evidence  regarding,  his  conduct  and 
words  for  a  long  period  of  time.  Illustrations  might  be  multiplied  in- 
definitely, but  as  it  is  much  easier  to  deal  with  individual  cases,  real 
or  hypothetical,  than  it  is  to  announce  a  rule  of  general  application, 
it  would  not  be  profitable. 

We  may,  however,  say  that  the  main  consideration  is  to  convey  to 
the  court  and  the  adverse  party,  clearly  and  certainly,  distinct  infor- 
mation regarding  the  matter  being  plead;  and  the  most  comprehensive 
terms  and  phrases,  expressive  either  of  facts  only  or,  in  instances  in 
which  there  is  good  precedent  for  such  use,  of  mixed  law  and  fact, 
which  will  aptly  and  accurately  accomplish  this  purpose,  should  be 
chosen.  Detail  is  to  be  avoided,  and  should  never  be  indulged  in  ex- 
cept in  rare  cases  in  which  there  is  no  other  manner  of  properly  ex- 
pressing the  facts. 

To  illustrate:  A  desires  to  sue  B  for  damages  for  breaking  his  arm 
in  an  assault  and  battery  committed  upon  him.  To  allege  that  A 
committed  a  battery  upon  B,  damaging  him  in  the  sum  of  one  thou- 
sand dollars,  would  not  be  good,  for  the  words  committed  a  battery 
involve  a  matter  of  mixed  law  and  fact,  and  there  is  no  established  pre- 
cedent for  its  use.  An  allegation  that  A  wrongfully  and  violently 
struck  B  with  a  stick,  breaking  his  arm,  and  causing  him  great  pain, 
physical  and  mental,  and  the  loss  of  six  months  time  from  his  work, 
and  stating  his  wage  earning  capacity  during  the  time,  would  be  good 
for  these  items  of  actual  damage.  If  the  battery  had  been  committed 
with  express  malice  and  B  desires  to  recover  exemplary  damages,  it 
would  be  necessary  to  add  to  the  statement  just  given  the  word  "ma- 
liciously," or  some  equivalent  as  descriptive  of  A's  conduct  in  the  prem- 
ises, and  appropriate  averments  as  to  the  amount  of  the  exemplary  dam- 
age and  prayer  for  such  damages.  The  word  "maliciously"  as  used  above, 
has  a  technical  and  legal  meaning,  but  the  precedents  justify  its  use.  It 
would  not  be  good  form,  however,  to  go  into  all  the  matters  of  de- 
tail, avering  the  cause  of  the  quarrel  between  the  parties,  the  length 
of  time  it  has  existed,  laying  in  wait,  by  A  for  B,  particular  descrip- 


266  GENERAL   PRINCIPLES   OF   PLEADING. 

tion  of  the  stick,  etc.  These  are  details  which  would  not  only  be  ad- 
missible but  indispensable  in  the  proof,  but  they  have  no  proper 
place  in  the  pleadings.22 


FULNESS. 

The  pleadings  must  consist  of  facts,  and  it  is  indispensable  that 
they  contain  every  fact  essential  to  the  maintenance  of  the  pleaders 
cause.  No  fact  which  the  pleader  desires  the  court  to  consider  can 
properly  and  safely  be  omitted. 

One  rule  for  testing  the  fulness  required  is,  that  the  pleading  shall 
be  so  full  that  if  all  its  averments  be  admitted  the  pleader  would  be 
entitled  to  the  action  asked  of  the  court.23 

The  following  cases  show  the  necessity  of  stating  the  facts — as 
distinguished  from  conclusions  of  law — and  the  needlessness  of  stating 
conclusions  of  law  when  the  facts  are  given,  and  the  insufficiency  of 
legal  conclusions  when  the  facts  are  not  set  out. 

Hamilton  v.  Battle:24  "Although  the  technicalities  and  circumlocu- 
tion of  special  pleadings,  as  practiced  under  the  common  law,  have 
been  discarded  in  this  Republic  by  statutory  provisions,  yet  it  is  not 
to  be  understood  that  recoveries  can  be  had  in  our  courts  except  in  ac- 
cordance with  the  state  of  the  pleadings;  nor  is  the  plaintiff  absolved 
from  the  necessity  of  setting  out  in  his  petition  fully  and  substantially 
the  grounds  of  his  complaint  upon  which  he  seeks  a  judgment  in  his 
favor.  In  actions  upon  bonds  and  notes  payable  in  specific  articles,  it  is 
necessary  for  the  plaintiff,  in  order  to  convert  it  into  a  money  demand,  to 
allege,  clearly  and  substantially,  the  failure  or  neglect  of  the  defend- 
ant to  perform  the  contract  by  the  delivery  of  the  specific  property  in. 
accordance  with  the  terms  of  the  contract,  and  his  own  right  to  re- 
cover, money  consequent  upon  that  failure.  In  all  such  cases  the 
obligor  or  promisor  has  his  election  of  either  alternative — to  deliver 
the  property  at  the  time  and  place  specified  in  the  contract,  or  to  pay 
the  money;  it  is  only  upon  his  failure  to  perform  the  first  alternative 
that  the  obligee's  or  promisee's  right  to  recover  the  money  can  accrue; 
and  however  clear  that  right  may  be,  however  well  grounded  his 
cause  of  action,  he  can  not  recover  beyond  his  allegations  of  the  de- 
fendant's nonperformance." 

Ramsay  v.  McCauley:25     "According   to   these   decisions,   then,   the 

^McCauley  v.  Long  &  Co.,  61  Texas,  74;  Sutor  v.  Woods,  76  Texas,  403,  13  S. 
W.,  321;  Russell  v.  Nail,  79  Texas,  664,  15  S.  W.,  635. 

23  Thompson  v.  Munger,  15  Texas,  530. 
24Dallam,  575. 
25  2  Texas,  192. 


FULNESS.  267 

fact  and  rate  of  interest  of  South  Carolina  were  the  proper  subject  of 
an  averment,  essential  to  the  right  of  the  plaintiff  to  recover  interest 
in  the  present  case.  And  not  having  been  averred,  can  not  be  supplied 
by  any  presumption  in  favor  of  the  verdict,  since  no  evidence  could 
legally  have  been  admitted  of  a  fact  not  averred,  upon  which  the 
plaintiff's  right  to  recover  depended.  It  is  not  such  an  omission  as 
can  be  cured  by  verdict.  'The  omission  of  alleging  a  matter  in  the 
pleadings  which  is  essential  to  the  action  is  never  cured  by  verdict/ 
5  Bac.  Abr.,  tit.  'Verdict/  X. ;  J.  J.  Marsh,  541." 

Paul  v.  Perez:26  Plaintiff's  petition  made  out  a  prima  facie  case 
showing  title  in  him.  Defendant  by  answer  set  up  in  nature  of  a  cross- 
action  a  superior  title  in  him.  Plaintiff  did  not  reply,  but  undertook 
in  his  proof  to  show  facts  constituting  a  forfeiture  of  defendant's 
title.  The  court  says:  "The  greater  and  most  material  part  of  this 
answer  is  in  the  nature  of  a  cross-bill,  in  which  the  defendant  becomes 
the  actor;  and  if  the  plaintiff  relied  upon  the  supposed  forfeiture, 
and  believed  that  he  had  a  right  to  avail  himself  of  it  in  this  action, 
he  should  have  set  up  the  fact  or  facts  constituting  the  forfeiture  in 
his  answer  to  this  cross-bill  or  petition  of  the  defendant;  or  he  could, 
on  motion  to  the  court,  have  amended  his  petition  by  inserting  the  alle- 
gation of  the  forfeiture.  The  principle  that  the  allegata  must  be 
broad  enough  to  admit  all  necessary  proof,  and  that  every  material  fact 
must  be  alleged,  has  been  often  declared  by  this  court;  first  solemnly 
adjudicated  in  Mims  v.  Mitchell  (1  Texas,  443),  and  sustained  by 
an  unbroken  train  of  decisions  from  that  time  down  to  the  present. 
(See  Coles  v.  Kelsey,  2  Texas,  541;  Caldwell  v.  Haley,  Id.,  317)  ;  and 
if  there  was  proof  without  such  allegata,  it  should  be  disregarded. 
(State  v.  Thorn,  3  Texas,  499;  Wright  v.  Wright,  Id.,  168;  Carter  & 
Hunt  v.  Wallace,  2  Id.,  206.)" 

Denison  v.  League  :27  "There  is  no  rule  that  has  been  so  stringently 
enforced  in  this  court  as  the  rule  that  the  allegata  must  be  broad 
enough  to  let  in  the  proof,  and  that  no  evidence,  not  supported  by  the 
allegata,  can  sustain  a  verdict.  This  rule  has  been  always  considered 
as  essential  to  our  system  or  jurisprudence,  and  giving  harmony  to 
the  system.  It  was  commented  on  and  enforced  in  the  case  of  Mims 
v.  Mitchell  (1  Texas,  443),  and  in  Hall  &  Jones  v.  Jackson,  and  in 
fact  by  a  train  of  decisions,  without  ever  having  been  relaxed  in  a 
single  instance.  The  whole  petition  is  so  indefinite  that  it  would 
be  difficult  to  sustain  a  decree  in  favor  of  the  plaintiff  on  any  part  of  it." 

Wright  v.  Wright;28  suit  for  divorce.  "Whether  evidence  would  be 
admissible  under  such  charges  must  depend  upon  the  rules  in  relation 

26  7  Texas,  345. 
"16  Texas,  409. 
28  3  Texas,  168,  1848. 


268  GENERAL    PRINCIPLES   OF    PLEADING. 

to  certainty  in  pleading  generally,  and  especially  in  controversies  of 
this  character. 

"The  statute  regulating  the  subject  matter  requires  a  full  and  clear 
statment  of  the  cause  of  action,  and  such  other  allegations  pertinent  to 
the  cause  as  may  be  deemed  necessary  to  sustain  the  suit. 

"This  full  and  clear  statement  must  embrace  the  material  facts 
upon  which  the  complaint  is  founded,  or  if  any  offense  is  charged,  the 
principal  facts  constituting  this  charge,  together  with  the  material 
circumstances  of  manner,  time,  and  place. 

"This  explicit  statement  of  facts  is  necessary,  that  the  defendant 
may  know  what  he  is  called  upon  to  answer  and  be  enabled  to  make 
the  proper  defense,  and  that  the  tribunal  having  cognizance  of  the 
controversy  may  be  apprised  of  the  matters  at  issue  and  be  enabled 
to  administer  the  proper  remedial  justice.  *  *  * 

"The  allegations  of  the  petition,  tested  by  the  provisions  of  the 
statute  and  the  rules  of  pleading,  particularly  in  controversies  of  this 
character,  are  vicious  for  the  want  of  specification  of  facts  constituting 
the  offenses,  or  even  averments  of  a  course  of  misconduct,  from 
which  the  class  of  facts  relied  upon  might  be  inferred. 

"The  terms  of  the  statute,  'excesses/  cruel  treatment  and  outrages, 
are  conclusions  from  facts,  or  are  rather  compound  questions  of  law 
and  facts;  the  constituent  acts  and  circumstances  of  which  should  be 
set  forth  that  the  court  may  judge  whether,  in  legal  contemplation, 
they  are  within  the  description  of  the  offenses  that  are  by  statute  good 
grounds  for  divorce. 

"The  defendant  is  entitled  to  have  the  judgment  of  the  court, 
whether  the  facts  charged  in  the  petition  constitute  offenses  in  law, 
before  he  can  be  compelled  to  proceed  to  trial  on  these  facts.  This 
right  would  be  totally  unavailing,  if  a  general  charge,  without  further 
specifications,  be  sufficient  to  admit  evidence  of  particular  facts  to 
substantiate  the  charge. 

"The  usual  order  of  procedure  would,  in  fact,  be  reversed.  The 
evidence  and  not  the  pleadings  would  show  the  grounds  of  complaint, 
and  their  sufficiency  could  be  determined  alone  upon  the  evidence; 
thus  necessarily  subjecting  the  defendant  to  all  the  vexation  and  ex- 
pense of  a  trial,  whether  the  facts  complained  of  be  legally  sufficient 
to  support  the  action  or  otherwise. 

"Without  a  specification  of  the  facts  constituting  the  offenses 
charged,  the  defendant  has  no  opportunity  of  invalidating  the  proof  by 
contrary  evidence.  He  is  not  informed  of  the  act  done  or  omitted,  or  of 
the  time,  place,  or  circumstances  of  the  facts  to  be  established  by  the 
evidence/' 

Hendrix  v.  JSTunn:29     "Whenever  the  plaintiff  seeks  to  impose  upon 

29  46  Texas,  148,  1876. 


FULNESS.  269 

the  defendant  the  character  of  a  trustee  in  invitum,  evidently  he  must 
allege  in  his  petition  the  facts  from  which  the  court  can  see  that 
equity  and  justice  require  that  it  should  charge  upon  defendant's 
conscience  the  performance  of  that  which  is  demanded  of  him.  *  *  * 
There  is  merely  a  bold  assertion  of  fraud,  as  an  inference  or  con- 
clusion, instead  of  a  statement  of  facts  showing  fraud,  as  is  unques- 
tionably necessary." 

Texas  Pacific  Eailway  Company  v.  Kirk:30  "The  twelfth  assign- 
ment of  error  is,  'The  court  erred  in  not  sustaining  the  special  de- 
murrers to  plaintiff's  petition.'  The  only  matter  urged  is  that  the 
petition  gave  the  conclusions  of  the  pleader  in  regard  to  certain  mat- 
ters. This  is  true;  but  the  facts  upon  which  the  conclusions  were 
based  were  fully  stated,  and  if  true  justified  the  conclusions  drawn  from 
them,  and  the  appellant  could  not  have  been  prejudiced  by  the  ruling  of 
the  court."  The  judgment  was  affirmed. 

Sharp  v.  Schmidt  &  Zeigler  ;31  injunction :  "It  is  fully  established 
by  our  own  decisions  'that  notwithstanding  an  illegal  writ  or  service  of 
process  a  court  of  equit}^  will  not  interfere  to  set  aside  a  judgment 
until  it  appears  that  the  result  will  be  different  from  that  already 
reached.  To  make  this  appear  the  petition  should  aver  matters  which 
amount  to  a  good  defense  to  the  original  action.  The  nature  of  the 
defense  must  be  given,  so  that  the  court  for  itself  may  determine  the 
conclusion  of  law  as  to  whether  or  not  it  is  a  good  defense  and  would 
procure  a  different  result  if  proved  upon  another  trial.  The  plaintiff's 
oath  to  such  a  conclusion  is  not  sufficient." 

Morrison  v.  Insurance  Company:32  "The  appellants  by  their  plead- 
ings undertook  to  declare  the  legal  effect  of  certain  provisions  in  the 
policy  sued  upon,  and  making  a  fac  simile  of  the  policy  a  part  of  the 
pleading,  and  the  court  sustained  an  exception  to  so  much  of  it.  In 
this  there  was  no  error,  for  the  pleadings  of  parties  should  state  facts, 
and  the  averments  of  legal  conclusions  drawn  from  facts  are  in  no 
manner  necessary  to  the  full  presentation  of  the  right  claimed." 

Brown  v.  Mitchell;33  suit  to  set  aside  will  for  undue  influence. 
"Appellant  excepted  specially  to  so  much  of  the  petition  as  set  up  un- 
due influence,  and  the  grounds  of  exception  were  as  follows:  'The 
petition  failed  to  show  the  nature  of  or  what  fraud  or  undue  in- 
fluence was  used  or  exercised,  or  how  or  in  what  manner  the  same  was 
used  or  exercised  in  order  to  procure  the  execution  of  such 
will.'  This  was  overruled.  The  averment  of  the  petition  was:  'Your 

30  62  Texas,  233,  1884. 

J1  62  Texas,  265,  1884. 

33  69  Texas,  359,  1887;  6  S.  W.,  605. 

33  75  Texas,  9,  1889;  12  S.  W.,  606. 


270  GENERAL  PRINCIPLES  OF  PLEADING. 

petitioners  further  allege  that  said  George  B.  Brown  and  J.  G.  Simpson 
conspired  and  confederated  with  themselves  and  others  and  used  and 
exercised  undue  influence  over  said  Lizzie  Brown,  deceased,  in  order 
to  fraudulently  procure  the  execution  of  said  instrument  in  writing.' 
This  was  the  mere  statement  of  conclusions  without  the  statement  of 
a,  single  fact  to  support  them,  and  the  exception  should  have  been 
sustained." 

Milburn  v.  Walker;34  suit  against  husband  and  wife  on  account 
and  a  written  contract.  "The  petition,  after  setting  forth  that  the 
articles  were  necessaries  for  the  wife,  her  children,  and  her  prop- 
erty, avers  that  the  husband  acknowledged  in  writing  the  justice  of  the 
demand,  and  promised  payment  on  behalf  of  the  wife.  There  is  no 
averment  that  by  such  promise  he  or  his  wife  became  liable,  but  that 
was  not  necessary.  If  the  promise  under  the  facts  forming  its  consider- 
ation created  a  liability  and  was  such  as  would  subject  the  separate 
estate  of  the  wife  to  its  payment,  there  was  no  indispensable  necessity 
to  aver  such  liability;  that  was  a  conclusion  of  law — the  legal  result 
of  the  facts  stated, — and  its  averment  was  not  essential  to  support  the 
action." 

Connor  v.  Saunders:35  "When  the  pleader  does  set  out  the  facts 
particularly  he  can  not  change  their  legal  effect  by  alleging  a  con- 
clusion of  law  different  from  that  which  the  law  itself  draws." 


Law  Need  Not  Be  Plead. 

This  rule,  confining  the  pleadings  to  a  statement  of  facts,  and  hence 
forbidding  the  incorporation  into  them  of  matters  of  law,  is  perfectly 
consistent  with  the  purpose  of  pleading  before  announced.  This  pur- 
pose is  to  inform  the  court  and  the  adverse  party,  and  it  necessarily 
follows  that  matters  of  law  need  not,  and  should  not,  be  averred,  for, 
the  courts  and  all  litigants  are  charged  with  knowledge  of  all  the 
law.  It  is  therefore  a  defect  in  pleading  to  state,  or  attempt  to  state, 
matters  of  law.  "'Law"  in  this  connection  includes  the  Constitution, 
laws  and  treaties  of  the  United  States  government,  and '  the  Consti- 
tution and  laws  of  the  State  of  Texas.  It  does  not  include  the  laws 
of  other  States  in  the  Union,  or  of  foreign  governments.  If  these 
differ  from  the  laws  of  Texas,  and  the  pleader  desires  the  benefit  of 
them,  he  must  plead  and  prove  them  as  other  facts,  for  the  court  does 
not  know  them  judicially.36 

31 11  Texas,  339,  1854. 

35  81  Texas,  633,  1891;   17  S.  W.,  236. 

36Hutchins  v.  Flintge,  2  Texas,  475;  State  v.  Delesdenier,  7  Texas,  96;  Huff  v. 
Folger,  Ball.,  530;  Hill  v.  McMermott,  Dall.,  419;  Norvell  v.  Oury,  13  Texas,  31. 


FULNESS.  271 

Facts  Judicially  Known. 

The  same  principle  relieves  the  pleader  from  the  necessity  of  alleg- 
ing those  facts  of  which  the  court  is  charged  with  judicial  notice. 
These  matters  are  enumerated  and  discussed  in  works  on  evidence  and 
need  not  be  further  discussed  here.  The  rule  of  pleading  is,  that  any 
fact  of  which  the  law  charges  the  court  with  judicial  knowledge  is  not 
required  to  be  plead.37 

General  Rules  of  Conduct  and  Condition. 

There  is  another  class  of  facts  which  need  not  be  alleged.  These 
are  those  general  rules  of  conduct  or  condition  which  are  so  nearly 
universal  that  the  courts  presume  their  existence  in  every  case,  and 
do  not  require  the  pleader  to  aver  them;  but,  on  the  other  hand,  re- 
quire the  party  desiring  to  establish  the  exception  to  these  general 
rules,  or  the  absence  of  these  ordinary  conditions,  to  aver  such  excep- 
tion or  such  absence  and  prove  it.  Take,  for  an  example,  the  capacity 
of  parties  to  bind  themselves  by  contract.  It .  is  essential  to  every 
contract  that  there  shall  be  competent  parties  legally  qualified  to 
enter  into  the  agreement,  but  it  is  not  necessary  in  declaring  upon  a 
contract  to  aver  the  capacity  of  any  of  the  parties  to  it;  for  capacity 
is  the  rule,  and  incapacity  the  very  rare  exception  among  those  who 
do  business,  and  the  law  presumes  that  the  parties  to  any  particular 
undertaking  are  competent  until  the  contrary  is  made  to  appear.  If 
in  a  particular  case  the  contract  sued  on  had  been  executed  by  a  compe- 
tent person,  the  plaintiff  would  not  be  required  to  plead  and  prove 
this;  but  if  the  defendant  were  incompetent,  as  a  married  woman  or  a 
minor,  this  defense  must  be  alleged  and  proved  by  the  defendant  in 
the  manner  required  by  law.  Another  illustration  of  such  presump- 
tion is  the  legality  of  the  subject  matter  of  a  contract.  While  it  is 
true  that  no  agreement  is  enforcible  which  is  in  itself  illegal,  still  in 
suing  on  a  contract  it  is  not  necessary  for  the  pleader  to  aver  the  le- 
gality, for  this  is  presumed;  and  if  in  the  particular  case  the  agree- 
ment is  void  because  of  illegality  in  itself,  or  in  its  consideration,  this 
is  a  matter  of  defense. 

These  presumptions  now  under  consideration,  and  which  relieve  the 
pleader  from  the  necessity  of  averring  the  absence  of  matters  of  defense, 
must  be  distinguished  from  another  class  of  presumptions  which  arise 
only  upon  the  proper  averments  being  made  in  the  pleading  and  a  failure 
to  deny  the  fact  so  averred,  and  which  relate  only  to  introduction  of  evi- 

3T  Railway  Co.  v.  Curry,  04  Texas,  88;  Weaver  v.  Nugent,  72  Texas,  279,  10  S. 
W.,  458. 


272  GENERAL   PRINCIPLES   OF   PLEADING. 

dence.  These  latter  are  presumptions  with  reference  to  evidence,  and  do- 
not  relieve  the  pleader  from  making  the  averment  in  the  first  instance. 
To  illustrate,  in  a  suit  against  a  partnership  it  is  necessary  to  allege 
the  fact  of  the  partnership,  and  if  this  allegation  is  not  made  the 
court  can  not  consider  the  suit  as  brought  against  the  partners  in 
their  partnership  capacity;  but  when  the  averment  is  made,  under  the 
statute  no  testimony  need  be  introduced  to  sustain  the  allegation  un- 
less the  defendant  shall  deny  the  fact  of  the  partnership  under  oath; 
and  so  with  reference  to  all  matters  which  must  be  plead  by  party 
desiring  the  benefit  of  the  facts,  as  to  which  the  law  presents  special 
manner  of  joinder  of  issue. 


Facts  Must  Be  Fully  Stated. 

With  these  exceptions,  that  is,  matters  of  law,  facts  judicially 
known,  facts  of  such  general  nature  or  conditions  so  nearly  universal 
that  they  are  presumed  to  exist  unless  specially  plead  and  proven  to 
the  contrary,  the  pleadings  must  contain  every  matter  that  the  court 
should  consider  in  determining  the  case.  ISTo  fact  not  alleged,  how- 
ever important  it  may  be,  can  be  received  in  evidence  or  considered 
by  the  court.38  It  is  therefore  essential  that  the  pleader  should  under- 
stand thoroughly  the  nature  of  his  case,  the  facts  which  he  may  be 
able  to  prove,  and  the  law  governing  them,  and  then  that  he  should 
incorporate  into  his  pleading  every  fact  essential  to  his  client's  right. 
The  court  can  not  go  beyond  his  allegations,  and  even  if  testimony 
were  received  by  the  court,  it  could  not  legally  be  considered  unless 
there  was  appropriate  allegation  in  the  pleading.39  This  is  what  is 
meant  by  the  statement  that  the  pleadings  must  be  full.  The  rule  is 
enforced  for  the  protection  of  the  court  and  the  adverse  party;  to  dis- 
regard it  would  be  to  practically  repeal  the  law  requiring  pleading. 


Need  Not  Anticipate  Defensive  Matters. 

While  a  pleading  must  state  the  facts  fully,  it  is,  except  in  a  few 
dilatory  pleas,  only  necessary  to  state  those  facts  which  will  make  the 
pleading  prima  facie  good,  and  it  need  not  go  further  and  anticipate 

38  Minis  v.  Mitchell,  1  Texas,  442 ;  Ramsey  v.  McCauley,  2  Texas,  189 ;  Lemmon 
v.  Hanley,  28  Texas,  220;  Pacific  Express  Co.  v.  Darnell  Bros.,  62  Texas,  639. 

s°Hall  v.  Jackson,  3  Texas,  305;  Crisman  v.  Miller,  15  Texas,  159;  Tarlton  v. 
Dailey,  55  Texas,  94;  Grounds  v.  Sloan,  73  Texas,  662,  US.  W.,  898;  Cooper  v. 
Loughlin,  75  Texas,  524,  13  S.  W.,  37;  Tinsley  v.  Penniman,  83  Texas,  54,  18  S. 
W.,  718. 


FULNESS.  273 

and  avoid  independent  matters  which  would  defeat  it  if  set  up  by  the 
adverse  party. 

It  is  frequently  not  improper  to  do  this,  and  sometimes  tends  to  a 
better  understanding  of  the  case,  but  it  is  not  essential.  Care  must  be 
taken,  however,  to  distinguish  between  independent  defensive  matter 
and  matter  which  is  so  intimately  connected  with  the  plaintiff's  cause 
of  action,  or  the  defendant's  ground  of  defense,  that  an  intelligent 
and  full  statement  of  the  cause  of  action  or  defense  can  not  be  made 
without  bringing  in  and  disclosing  the  matter  defeating  it.  When- 
ever this  is  the  case,  the  pleader  should  set  up  the  matter  in  avoid- 
ance also;  otherwise  the  defensive  matter  confessed  would  destroy 
his  pleading.  To  illustrate:  If  the  plaintiff  in  a  suit  for  damages  for 
personal  injury  to  himself,  caused  through  defendant's  negligence, 
can  state  his  case  without  showing  contributory  negligence  on  his  part, 
he  may  do  so,  and  the  petition  will  be  good,  without  denying  negli- 
gence, but  if  the  facts  are  such  that  in  stating  his  own  case  he,  in  legal 
effect,  makes  a  prima  facie  case  of  contributory  negligence  against  him- 
self, he  must  then  go  further  and  show  additional  facts  which  avoid 
this  defense,  as  that  he  was  placed  in  sudden  and  imminent  peril  by 
the  wrong  of  the  defendant,  and  acted  upon  the  impulse  of  the  mo- 
ment, taking  what  seemed  to  be  the  safer  course  to  relieve  himself 
from  danger,  or  that  the  wrong  by  the  defendant  was  intentional  and 
willful,  etc.40 

Another  illustration  is  found  in  suit  by  an  employe  improperly 
discharged.  Here  the  plaintiff  need  not  negative  that  he  could  have 
gotten  employment  by  use  of  reasonable  diligence,  this  is  a  defense  to 
be  averred  by  defendant. 


Omissions  Sometimes  Cured  by  Allegations  by  the  Other  Party. 

This  rule  is  usually  applied  in  cases  in  which  the  objection  is  made 
to  the  introduction  of  testimony,  and  in  that  connection  is  a  very  salu- 
tary one,  as  it  would  be  a  little  difficult  to  see  how  a  party  had  been 
misled  by  failure  to  plead  a  matter  which  he  has  himself  set  up,  or 
be  surprised  by  proof  offered  in  support  of  his  own  allegation.  So, 
in  ruling  upon  the  admission  of  testimony,  the  court  may  well  look 
to  the  whole  record.41 


40  Railway  Co.  v.  Sheider,  88  Texas,  152,  30  S.  W.,  902;  City  of  Denison  v.  San- 
ford,  2  Texas  Civ.  App.,  661,  21   S.  W.,  784;   Hollingsworth  v.  Holshouser,   17 
Texas,  45. 

41  Hill  v.  George,  5  Texas,  87;  Andrews  v.  Hoxie,  5  Texas,  171;  Grimes  v.  Ha- 
good,  19  Texas,  246. 

18 — Pleading 


274  GENEEAL  PRINCIPLES  OF  PLEADING. 

The  same  principles  apply  when  the  objection  is  urged  for  the  first 
time  in  motion  for  new  trial  or  arrest  of  judgment.42 

Quite  different  questions  arise,  however,  when  the  party  has  been 
vigilant  in  discovering  the  defect  and  prompt  to  call  it  to  the  court's 
attention  by  demurrer,  and  his  adversary  asks  to  look  to  subsequent 
portions  of  the  pleading  containing  the  demurrer  to  find  allegations 
with  which  to  patch  out  his  defective  averments.  There  are  a  few 
cases,  however,  extending  the  rule  even  this  far.43 

Another  phase  of  this  question  is  presented  in  those  cases  in  which 
the  defendant  seeks  some  affirmative  relief  and  many  of  the  facts  on 
which  he  relies  have  already  been  plead  by  the  plaintiff,  and  the  de- 
fendant desires  to  adopt  these  facts  from  his  adversary  and  state  the 
additional  matters  necessary  to  show  his  right. 

He  is  permitted  to  do  this,  and  even  if  the  plaintiff  afterwards  dis- 
misses his  case,  his  pleadings  will  still  remain  in  the  record  for  this 
purpose  and  can  be  utilized  by  the  defendant.44 

This  rule  can  not  be  invoked  on  a  hearing  on  demurrer  when  the 
pleading  demurred  to  sets  out  facts  which  are  repugnant  to  the  fact 
sought  to  be  supplied  from  the  pleading  interposing  the  demurrer. 
This  would  not  be  supplying  an  omission,  but  would  be  contradicting 
the  pleading  sought  to  be  aided.45 

Questions  of  this  sort  ought  never  to  arise.  It  is  at  best  somewhat 
humiliating  to  a  lawyer  to  be  compelled  to  confess  the  defects  in  his 
own  work,  and  beg  leave  to  save  his  client  from  harm  by  being  allowed 
to  avail  himself  of  his  adversary's  efforts. 


Adoption  of  Pleading  or  Parts  of  Pleadings  of  Other  Parties. 

It  is  often  a  practical  question  whether  or  not  facts  already  in  the 
record  can  be  adopted  by  a  pleader  and  made  parts  of  his  pleadings 
so  as  to  relieve  him  from  the  necessity  of  setting  them  out.  This 
is  always  his  privilege;  whether  he  will  avail  himself  of  it  is  a  matter 
of  judgment  in  each  case.  This  adoption  may  be,  and  very  frequently 
is,  of  matters  stated  by  the  adverse  party.  In  an  action  of  trespass 
to  try  title,  the  defendant  setting  up  ownership  in  the  lands,  or  limita- 
tion or  improvements  in  good  faith,  may,  and  in  most  cases  does,  refer 

^Willis  v.  Lockett,  26  -S.  W.,  419;  Railway  Co.  v.  Anderson,  76  Texas,  252, 
13  S.  W.,  196. 

43  Day  Co.  v.  State,  68  Texas,  537,  4  S.  W.,  865;  Security  Mortgage  &  Trust 
.Co.  v.  Caruthers,  11  Texas  Civ.  App.,  430,  32  S.  W.,  837. 

*  Giraud  v.  Ellis,  24  S.  W.,  967. 

*5Biddle  v.  City  of  Terrell,  82  Texas,  335,  18  S.  W.,  691. 


FULNESS.  275 

to  the  land  as  that  described  by  the  plaintiff  in  his  petition  without 
describing  it  himself.  Many  other  illustrations  might  be  given.  The 
adoption  may  be  of  parts  of  pleadings  previously  filed  by  the  pleader 
himself,  as  by  referring  back  to  the  original  petition  or  answer,  in  a 
supplemental,  etc.  Or  it  may  be  of  facts  contained  in  the  same  plead- 
ing, as  where  the  facts  have  been  fully  and  accurately  set  out  in  one 
count  or  paragraph,  reference  may  be  made  to  these  facts  in  subse- 
quent counts  without  necessity  of  repetition.  The  rule  by  which  to 
be  guided  is  to  to  take  the  method  which  will  most  concisely,  yet  accu- 
rately and  intelligently,  present  the  case.  If  this  can  best  be  ac- 
complished by  repeating  the  facts,  this  should  be  done;  if  by  referring 
to  and  adopting  former  pleadings,  this  should  be  done. 


Cure  of  Omissions  in  Pleadings  by  Verdict. 

As  early  as  1847  our  Supreme  Court  in  discussing  this  question 
said: 

A  fact  "not  having  been  averred  can  not  be  supplied  by  any  pre- 
sumption in  favor  of  the  verdict,  since  no  evidence  could  legally  have 
been  admitted  of  a  fact  not  averred  upon  which  the  plaintiff's  right 
depended.  It  is  not  such  an  omission  as  can  be  cured' by  verdict. 
'The  omission  of  alleging  a  matter  in  a  pleading  which  is  essential  to 
the  action  can  never  be  cured  by  verdict/  "46 

Later  the  court  adopted  this  language  as  expressing  the  rule:  "The 
verdict  or  decree  cures  all  defects,  imperfections,  or  omissions  in  the 
petition  or  statement  of  the  cause  of  action,  whether  of  substance  or 
form,  if  the  issue  joined  be  such  as  required  proof  of  the  facts  im- 
perfectly stated  or  omitted,  though  it  will  not  cure  or  aid  a  state- 
ment of  a  defective  title  or  cause  of  action."47 

This  has  been  several  times  copied.48  This  seems  somewhat  ambig- 
uous. Just  how  all  omissions  in  the  statement  of  a  cause  of  action  can 
be  cured  by  verdicts  and  still  no  omission  constituting  a  defect  in  a 
cause  of  action  be  cured  is  not  very  readily  apparent. 

In  Gillis  v.  Wofford,49  it  is  held  that  a  verdict  will  not  cure  an 
omission  in  a  petition  if  the  evidence  offered  on  the  point  is  received  over 
objection  of  the  defendant. 

In  Brackett  v.  Devine,50  it  was  held  that  a  direct  averment  of  a  breach 

"  Ramsey  v.  McCauley,  2  Texas,  189. 

4T  De  Witt  v.  Miller,  9  Texas,  239. 

48  Williams  v.  Warnell,  28  Texas,  610;  Stansbury  v.  Nichols,  30  Texas,  145. 

48  26  Texas,  76. 

50  25  Texas  Supp.,  195. 


276  GENERAL   PRINCIPLES   OP   PLEADING. 

of  the  contract  sued  on  was  essential,  and  that  such  omission  is  not 
cured  by  judgment  by  default. 

Grant  v.  Whittlesey51  is  a  suit  on  a  note  in  which  there  was  no  alle- 
gation of  failure  to  pay.  Demurrer  was  filed  but  not  acted  on  by 
the  court.  Jury  was  waived  and  the  case  was  tried  before  the  judge. 
He  found  for  the  plaintiff.  The  defendant  appealed  and  contended 
the  omission  in  the  petition  was  fatal.  The  plaintiff  relied  on  the 
finding  and  judgment  in  his  favor  to  cure  the  defect.  The  court 
says:  "A  verdict  can  not  cure  or  supply  the  failure  in  a  petition  to 
state  a  cause  of  action;  and  omission  to  act  or  rely  on  a  demurrer  to 
a  petition  fatally  defective  will  not  prevent  a  party  from  availing 
himself  of  such  defect  on  appeal  or  writ  of  error.  *  *  *  The  plain- 
tiff has  failed  to  state  a  cause  of  action  in  that  he  does  not  aver  a 
breach  of  the  contract  sued  on;  he  does  not  aver  that  the  defendant 
failed  to  pay  the  note,  and  such  failure  must  be  averred  to  support  the 
judgment/' 

The  latest  case  directly  on  the  point  which  I  have  found  is  Schuster 
v.  Friedenthal  &  Co.52  It  is  a  suit  in  which  the  dissolution  of  a  part- 
nership was  an  essential  fact.  There  was  no  such  direct  allegation. 
The  demurrer  was  waived,  but  the  defect  in  the  petition  was  assigned 
as  error  in  the  Supreme  Court,  Judge  Gaines  says:  "It  is  here  in- 
sisted that  the  petition  is  insufficient  because  it  is  not  alleged  that  the 
partnership  is  dissolved,  and  because  an  action  of  debt  can  not  be 
brought  by  a  firm  upon  an  indebtedness  of  a  member  to  a  partnership. 
If  the  demurrer  to  the  petition  had  been  insisted  upon  it  may  be  that 
it  should  have  been  sustained. 

"But  there  having  been  a  verdict  in  the  case  without  any  action 
on  the  demurrer,  we  are  of  opinion  that  any  defect  in  the  petition 
has  been  cured  by  the  verdict.  Where  there  has  been  a  judgment  by 
default  upon  a  petition  defective  in  substance,  the  defect  in  the  plead- 
ing may  be  taken  advantage  of  upon  error,  Grant  v.  Whittlesey,  42 
Texas,  321 ;  Brackett  v.  Divine,  25  Texas,  Supp.,  195.  But  where 
there  has  been  a  verdict  a  different  rule  applies. 

"A  pleading  is  cured  by  the  verdict  when  the  omitted  fact  is  such 
that  it  is  presumed  that  the  judge  would  not  have  directed  the  jury  to 
give  verdict  or  the  jury  would  not  have  given  the  verdict  unless  it 
had  been  proved.  But  a  verdict  will  not  cure  a  clear  omission  of  a 
necessary  substantive  allegation.  Grant  v.  Whittlesey,  supra.  'The 
particular  thing  which  is  presumed  to  have  been  proved  must  always 
be  such  as  can  be  implied  from  the  allegations  in  the  record  by  fair 
and  reasonable  implication.'  1  Chitty  Plead.,  17  Am.  Ed.,  705.  The 

51  42  Texas,  320. 

62  74  Texas,  53,  11  S.  W.,  1051. 


FULNESS.  277 

allegations  in  the  petition  under  consideration  do  not  very  distinctly 
show  a  cause  of  action.  But  we  think  every  fact  necessary  to  sustain 
a  recovery  may  be  deduced  from  them  by  fair  implication." 

It  is  difficult  to  state  accurately  the  result  of  these  decisions.  It  is 
clear  that  the  rules  applied  in  testing  the  sufficiency  of  the  plead- 
ing when  the  point  is  raised  for  the  first  time  after  verdict  are  more 
liberal  even  than  in  considering  a  general  demurrer,  for  in  the  last 
case  it  is  said  that  the  demurrer  if  seasonably  interposed  should  have 
been  sustained.  So  all  such  intendments  as  can  be  invoked  in  such 
cases  apply  here.  The  difficulty  arises  when  we  undertake  to  deter- 
mine how  much  more  liberality  shall  be  extended.  Clearly  the  ob- 
jection of  argumentativeness  is  cured  by  the  verdict,  as  the  process 
by  which  the  petition  in  the  last  cited  case  was  sustained  is  just  the 
one  prohibited  by  the  rule  on  that  subject.  Perhaps  it  may  be  correct 
to  say  that  a  verdict  will  cure  all  objections  to  a  pleading  which  are 
based  on  matters  of  form,  and  all  those  based  on  matters  of  substance 
which  do  not  involve  the  entire  absence  of  some  essential  allegation. 
That  any  indirect  method  of  allegation,  or  any  statement,  however 
general,  which  by  any  reasonable  though  liberal  construction  can  be 
made  to  include  the  alleged  omission  will  be  held  to  do  so  and  cure 
the  defect  unless  it  has  been  called  to  the  attention  of  the  court  by 
an  unwaived  exception  to  the  pleading  or  by  objection  to  the  testimony; 
and  that  a  judgment  by  default  does  not  have  the  same  healing  effect, 
but  the  rules  to  be  applied  to  the  petition,  in  seeking  to  avoid  or  set 
aside  such  a  judgment  are  the  same  as  on  general  demurrer. 


Allegations  of  Damage. 

The  damages  sought  to  be  recovered  must  always  be  stated.  Dis- 
tinction is  made  between  pleading  general  and  special  damages.  If 
the  damages  are  such  as  result  from  the  wrong  not  only  naturally,  but 
necessarily,  they  are  general,  but  if  they  result  naturally,  but  not  neces- 
sarily, they  are  special. 

General  damages  may  be  alleged  generally  in  an  aggregate  sum; 
special  damages  must  be  alleged  specially  in  separate  sums  for  each 
item.53 

If  it  is  desired  to  recover  both  actual  and  exemplary  damages,  in 
addition  to  the  facts  entitling  to  the  actual,  the  pleading  must  contain 
allegations  of  every  other  fact  essential  to  entitle  to  exemplary  dam- 

MGlascock  v.  Shell,  57  Texas,  224;  T.  &  P.  Ry.  Co.  v.  Curry,  64  Texas,  85; 
Moehring  v.  Hall,  66  Texas,  240,  1  S.  W.,  258;  E.  L.  &  R.  R.  Ry.  Co.  v.  Brinker, 
68  Texas,  502,  3  S.  W.,  99;  Railway  Co.  v.  Smith,  74  Texas,  276,  11  S.  W.,  1104; 
Railway  Co.  v.  Wilson,  79  Texas,  373,  15  S.  W.,  280;  Campbell  v.  Cook,  86  Texas, 
632,  26  S.  W.,  486;  Black  v.  Calloway,  30  Texas,  237. 


278  GENERAL   PRINCIPLES   OF   PLEADING. 

ages,  and  the  amount  of  each  kind  of  damage  sought  should  be  stated 
separately,  though  failure  to  do  the  latter  must  be  objected  to  by  special 
demurrer.54 


The  Relief  Sought. 

If  the  pleading  be  intended  as  a  basis  of  affirmative  relief  by  the 
court,  the  statement  of  facts  entitling  thereto  should  be  followed  by  an 
appropriate  prayer,  and  no  relief  will  be  granted  not  coming  fairly 
within  the  legal  import  of  the  prayer.  In  cases  in  which  there  is 
doubt  as  to  proper  remedy,  either  on  account  of  uncertainty  as  to  the 
facts  or  law  or  both,  alternate  prayers  are  permitted.55 

The  prayer,  however,  must  conform  to  the  facts  alleged  and  can 
not  vary  the  legal  effect  of  such  facts,  even  if  the  proof  should  sup- 
port the  prayer  if  there  was  no  proper  allegation  of  the  facts  in  the 
pleading  to  support  the  proof,  the  prayer  could  not  supply  this  omis- 
sion.56 

A  party  setting  up  facts  and  indicating  therein  the  purpose  for  which 
they  are  plead,  can  not,  after  the  evidence  is  in,  place  a  different  con- 
struction thereon,  and  by  charges  give  a  different  legal  effect  to  his 
pleading,  and  make  it  the  basis  of  action  by  the  court  not  fairly 
within  the  purpose  originally  designated.57 


BULBS  AS  TO  CERTAINTY. 

The  facts  constituting  the  cause  of  action  or  ground  of  defense 
should  be  stated  with  such  certainty  and  accuracy  as  to  advise  the 
court  and  adverse  party  of  the  very  matters  relied  upon.  The  difficulty 
here  is  to  avoid,  on  the  one  hand,  statements  so  general  that  they  do 


54  Railway  Co.  v.  Garcia,  70  Texas,  208,  7  S.  W.,  802;   Moehring  v.  Hall,  66 
Texas,  240/1  S.  W.,  258;  Kaufman  v.  Wicks,  62  Texas,  234;  Wallace  v.  Mnberg, 
46  Texas,  49;  Railway  Co.  v.  La  Gierse,  51  Texas,  203. 

55  Minis  v.  Mitchell,  1  Texas,  448;  Lucketts  v.  Townsend,  3  Texas,  119;  Moore  v. 
Guest,  8  Texas,  119;  Pinchain  v.  Collard,  13  Texas,  334;  Dimmitt  v.  Robbins,  74 
Texas,  443,  12  S.  W.,  94:  Fowler  v.  Stoneum,  11  Texas,  511;  Chrisman  v.  Miller, 
15  Texas,  160;   Scott  v.  Atchison,  36  Texas,  76;  Hillebrant  v.  Barton,  39  Texas, 
601 ;  Railway  Co.  v.  Pfeuffer,  56  Texas,  74. 

66  Mil  liken  v.  Smoot,  64  Texas,  173;  Pridgin  v.  Strickland,  8  Texas,  436;  Den- 
ison  v.  League,  16  Texas,  407;  Trammell  v.  Watson,  25  Texas  Supp.,  216;  Silber- 
berg,  v.  Pearson,  75  Texas,  290,  12  S.  W.,  850;  Garvin  v.  Hall,  83  Texas,  301,  18  S. 
W.,  731;  City  of  Houston  v.  Emery,  76  Texas,  285,  13  S.  W.  264;  Zadick  &  War- 
telsky  v.  Shafer,  Swartz  &  Co.,  77  "Texas,  504,  14  S.  W.,  153. 

57  Ellis  v.  Singletary,  45  Texas,  47. 


RULES   AS   TO    CERTAINTY.  279 

not  convey  the  proper  information,  and  on  the  other,  going  into  such 
details  as  unnecessarily  encumber  the  record.68 

The  statements  should  not  be  so  indefinite  and  vague  as  to  leave 
room  for  reasonable  doubt  as  to  the  legal  import  of  the  pleading  nor 
as  to  the  facts  upon  which  the  pleader  relies  to  sustain  his  case ;  neither 
should  they  be  so  specific  as  to  set  out  matters  of  evidence. 

Practical  common  sense  and  precedents,  when  the  latter  can  be 
found,  are  the  safest  guides. 

The  following  cases  furnish  valuable  guides  in  this  matter. 

In  Minis  v.  Mitchell59  the  rule  is  expressed  in  these  words:  "The 
object  of  pleading  is  to  apprise  the  court  and  the  opposite  party  of  the 
facts  upon  which  the  pleader  intends  to  rely,  as  constituting  his  cause 
of  action  or  ground  of  defense.  And  the  averments  should  set  forth 
the  facts  relied  on  with  such  precision,  clearness,  and  certainty  as  to 
apprise  the  opposite  party  of  what  he  will  be  called  upon  to  answer, 
and  what  is  intended  to  be  proved,  so  that  the  evidence  introduced  may 
not  take  him  by  surprise.  Such  certainty  is  essential  in  order  that 
the  facts  relied  on  by  either  party  may  be  understood  by  the  party  who 
is  to  answer  them,  by  the  jury  who  are  to  ascertain  their  truth,  and 
by  the  court  who  is  to  give  judgment  upon  them.  Where  there  is  not 
such  certainty,  objections  to  evidence  ought  to  be  sustained;  for  a 
party  ought  not  to  be  permitted  to  prove  what  he  has  not  alleged." 

In  Caldwell  v.  Haley,60  the  Supreme  Court  says:  "In  our  plead- 
ings, it  has  uniformly  been  held  essential  to  state  the  facts  on  which 
the  party  intends  to  rely  as  constituting  his  cause  of  action  or  ground 
of  defense,  with  such  circumstantial  accuracy  as  to  apprise  the  op- 
posite party  of  what  is  intended  to  be  proved  at  the  trial.  (Wright  v. 
Wright,  decided  at  present  term;  Minis  v.  Mitchell,  1  Texas,  443;  Car- 
ter &  Hunt  v.  Wallace,  2  Texas.)  That  the  petition  in  the  case  before 
us  does  not  contain  the  requisite  accuracy  and  certainty,  is  manifest. 
It  apprises  the  defendant  of  no  one  fact  going  to  constitute  the  plain- 
tiff's cause  of  action,  with  time,  place,  quantity,  value,  or  any  other 
circumstances  of  identity  or  certainty.  It  can,  in  no  just  sense,  be 
said  to  contain  a  statement  of  the  plaintiff's  case,  so  set  forth  as  to 
apprise  the  defendant  of  the  real  nature  of  the  plaintiff's  demand,  and 
of  the  facts  intended  to  be  proved.  *  *  * 

"The  petition  in  this  case  seems  to  have  been  framed  in  imitation  of 
a  declaration  in  the  English  system,  embracing  the  common  counts; 
and  it  would  perhaps  be  difficult  for  one  not  acquainted  with  that 
system  to  conjecture  what  the  pleader  really  had  in  view,  or  where  he 

68  Gray  v.  McFarland,  29  Texas,  163;  Stansbury  v.  Nichols,  30  Texas,  148;  May- 
ton  v.  Railway  Co.,  63  Texas,  77. 

58 1   Texas,   446. 

90  3  Texas,  318,  1848. 


280  GENERAL   PRINCIPLES   OF   PLEADING. 

i 

had  found  the  model  of  a  petition  by  which  so  effectually  to  disguise 
and  conceal,  under  the  pretense  of  stating,  the  real  facts  and  circum- 
stances of  his  case.  But  in  our  pleading  the  common  counts  are  un- 
known. Every  action  is  a  special  action  on  the  particular  case;  and 
the  petition  must  be  framed  in  respect  to  the  particular  grievance  for 
which  the  party  seeks  redress.  This  has  not  been  done  in  the  present 
instance,  and  we  are  of  opinion  that  the  petition  is  defective  and  in- 
sufficient. 

"There  doubtless  will  be  cases  in  which  it  will  not  be  practicable  to 
state  and  describe  the  cause  of  action  with  entire  circumstantial  exact- 
ness and  accuracy,  or  to  attain  more  than  reasonable  certainty,  or  a  cer- 
tainty to  a  common  intent,  as  it  is  sometimes  rather  indefinitely, 
though  technically,  expressed  in  the  books.  Such  was  the  case  of 
Frosch  v.  Swett,  decided  at  the  last  term.  In  that  case,  however,  the 
plaintiff  confined  his  statement  to  a  single  transaction,  and  being  an 
administrator,  and  not  presumed  to  be  conversant  with  the  particulars 
of  the  dealing  of  his  intestate,  it  was  held  that  his  petition  was  sufficient 
without  a  statement  of  the  circumstances  out  of  which  the  alleged  in- 
debtedness arose.  It  was  manifest  that  had  the  plaintiff  not  been 
permitted  to  recover  upon  the  statement  of  the  case  contained  in  his 
petition,  he  could  never  have  recovered  at  all,  and  a  meritorious  cause 
of  action  must  have  been  defeated.  For  to  have  required  greater  particu- 
larity and  certainty  would  have  been  to  have  required  an  impossibility 
in  that  case,  and  would  have  defeated  the  ends  of  justice,  and,  of  course, 
the  intention  of  the  law/' 

There  are  a  few  matters  on  which  precedents  may  be  said  to  have 
ripened  into  rules.  This  is  true  as  to  time,  place,  quantity  and  value. 
Neither  of  these  is  ordinarily  required  to  be  stated  with  precision, 
however,  in  those  exceptional  instances  in  which  the  time  or  place,  etc., 
is  descriptive  of  the  particular  thing  in  suit,  or  there  is  some  special 
right  dependent  upon  it,  the  averments  must  be  specific  and  accurate. 


Certainty  in  Allegations  of  Time. 

Time  is  rarely  considered  as  descriptive,  and  an  event  may  be 
charged  to  have  occurred  on  one. date  and  be  proven  on  another  with- 
out occasioning  any  legal  variance  between  the  proof  and  the  allega- 
tion. The  limits  to  the  difference  between  these  dates  is  that  the 
date  must  not  be  stated  as  so  long  before  suit  that  the  claim  would 
appear  to  be  barred  by  limitation  at  time  of  bringing  suit  or  filing  plea, 
nor  as  occurring  after  suit  brought.  The  relative  time  of  different 
events  is  also  to  be  observed  and  they  should  be  alleged  as  occurring  in 


RULES   AS   TO    CERTAINTY.  281 

their  proper  chronological  order,  particularly  when  the  later  events 
depend  on  or  result  from  the  earlier.81- 

Time  may,  however,  sometimes  be  descriptive.  If  a  suit  is  on  a 
written  contract,  its  date  is  one  of  the  chief  means  of  identifying  it 
and  distinguishing  it  from  other  contracts  of  a  similar  nature.  In 
such  cases  much  care  must  be  observed  in  stating  the  time.  Formerly 
it  was  held  that  a  difference  in  the  date  in  the  alleged  instrument  and 
the  one  offered  in  evidence  was  always  fatal.  The  later  and  better 
rule  is  that  this  is  so  unless  from  other  descriptive  matters  stated  in 
the  pleadings  it  is  clear  that  a  reasonable  person  could  not  have  been 
misled  or  deceived  by  the  improper  statement;  in  which  case  the 
variance  will  be  disregarded. 

Again,  if  the  legal  validity  of  the  act,  or  the  rights  of  the  parties 
under  it,  are  affected  by  the  date,  it  must  be  proved  as  alleged.  There 
are  some  statutory  offenses  of  a  continuing  nature  as  to  which  the  law 
provides  that  each  day  that  the  violation  exists  shall  be  a  separate 
offense,  and  occasionally  similar  provisions  are  made  as  to  penalties 
recoverable  in  civil  suits.  In  such  cases  the  day  on  which  the  act  was 
done  is  an  essential  element  of  the  offense,  and  must  be  correctly 
stated,  whether  the  proceeding  is  a  criminal  prosecution  for  the  crime, 
or  a  civil  suit  for  the  penalty. 

The  same  is  true  in  cases  involving  violation  of  statutes  regarding 
the  Sabbath,  usually  known  as  Sunday  laws,  whether  the  issue  arise  in 
a  criminal  prosecution  or  a  suit  on  a  contract  which  is  sought  to  be 
avoided  because  of  illegality  for  violating  such  statute. 


Certainty  in  Allegations  of  Place. 

It  is  also  an  established  rule  that  large  latitude  is  allowed  in  stating 
the  place  at  which  an  act  or  event  occurred.  Usually  it  can  matter 
but  little  to  the  court  or  either  party  just  where  a  wrong  was  com- 
mitted,62 but  if  there  be  anything  in  the  case  which  makes  locality 
descriptive  of  the  act,  or  an  element  in  the  right  violated  or  injury 
done,  it  must  be  correctly  stated.63  Thus  where  venue  is  fixed  away 
from  the  defendant's  residence  by  the  place  of  performance  of  a  Avrit- 
ten  contract,  place  becomes  an  important  element  in  the  plaintiff's 
right  to  maintain  his  suit  in  the  court  selected  by  him,  and  niust  be 
properly  stated. 

61  Andrews'  Stephens  on  Pleading,  333;    Gould  on  Pleading,  3  ed.,  sec.  63,  et 
seq. ;  1  Greenleaf  on  Evidence,  sees.  56,  61. 

J-  Railway  Co.  v.  Kuehn,  2  Texas  Civ.  App.,  210,  21  S.  W.,  58;  Brown  v.  Sulli- 
van, 71  Texas,  470,  10  S.  W.,  288. 

83  Railway  Co.  v.  Simonton,  2  Texas  Civ.  App.,  558,  22  S.  W.,  285. 


282  GENERAL  PRINCIPLES  OF  PLEADING. 

Again,  in  local  actions  of  all  kinds,  that  is,  suits  for  land,  or  for 
trespass  or  injury  to  it,  the  place  is,  of  course,  an  essential  part  of  the 
case  and  must  be  properly  described,  and  a  variance  will  prevent  a  re- 
covery. So  if  the  nature  of  the  place  at  which  the  alleged  wrong  oc- 
curred will  affect  the  relations  and  right  of  the  parties,  it  must  be 
properly  plead.  As  in  suits  against  railroad  companies  for  injury  to 
person  by  collision  with  train.  Different  rules  of  law  apply  according 
to  whether  the  injury  occurred  at  the  crossing  of  a  public  road  and 
the  railroad  track,  or  on  the  track  away  from  the  road,  and  here  the 
locality  must  be  truly  given.6* 


Certainty  in  Allegations  of  Quantity. 

Quantity  is  not  ordinarily  required  to  be  stated  with  exactness.  If 
suit  be  brought  for  a  flock  of  sheep,  the  exact  number  in  the  flock  is 
not  essential  to  the  identity  of  the  flock,  or  the  plaintiff's  right  in  it,, 
nor  the  wrong  done  by  the  defendant  and  so  it  may  be  given  in  general 
terms,  care  being  taken  to  have  the  number  alleged  as  large  as  the  real 
number,  and  recovery  can  be  had  of  as  many  as  the  plaintiff  shall 
show.65 


Certainty  in  Allegations  of  Value. 

The  same  rules  apply  as  to  value.  It  should  always  be  alleged,  but 
is  not  regarded  as  descriptive  of  the  subject  matter  of  the  suit,  and  may 
therefore  be  proved  just  as  laid  or  for  any  other  amount;  the  recovery 
being  limited  to  the  sum  claimed.  If  the  proof  should  go  beyond  that 
amount,  that  is,  if  suit  be  brought  for  conversion  of  property  valued 
at  one  thousand  dollars,  and  the  proof  shows  that  sum  or  less,  the  re- 
covery would  be  limited  to  the  proof,  but  if  the  proof  be  beyond  that 
sum,  the  recovery  would  be  limited  by  the  pleadings. 

The  recovery  can  not  go  beyond  an  amount  covered  by  both  plead- 
ings and  proof. 

There  was  an  old  rule  that  if  suit  was  brought  for  a  number  of 
separate  articles  or  things,  and  only  an  aggregate  value  was  given,  and 
the  proof  showed  a  different  number,  there  could  be  no  apportionment 
of  the  alleged  value  and  pro  rata  recovery,  but  this  seems  to  be  no 
longer  the  case.  It  is  always  proper  and  almost  always  necessary  to 


"Borrow  v.  Philleo,  14  Texas,  345;  Wilson  v.  Adams,  15  Texas,  323;  (Steinbeck 
v.  Stone,  53  Texas,  380;  Roche  v.  Lovell,  74  Texas,  194,  11  S.  W.,  1079;  Lumpkin 
v.  Sillimon,  79  Texas,  165,  15  S.  W.,  231. 

95  Railway  Co.  v.  Edwards,  78  Texas,  307,  14  S.  W.,  607. 


RULES   AS   TO    CERTAINTY.  283 

state  some  value  for  the  thing  sued  for  or  about,  and  if  there  are 
several  distinct  things,  as  a  number  of  animals,  separate  value  should 
be  stated  as  a  certain  sum  each,  or  if  of  variable  values  this  should 
be  stated.  If  there  is  a  quantity  of  any  commodity,  such  as  a  number 
of  bales  of  cotton  or  bushels  of  wheat,  the  value  should  be  alleged,  per 
pound  or  bushel,  and  also  in  the  aggregate.66 


Certainty  as  to  Thing  Sued  for. 

The  res,  or  thing  for  or  about  which  the  suit  is  brought,  should  be 
described  with  such  certainty  as  will  enable  the  court  and  the  adverse 
party  to  distinguish  it  readily  from  other  similar  things.67  Ordinarily 
this  is  not  difficult,  though  sometimes  it  is  impossible.  The  descrip- 
tion must  be  given  according  to  the  circumstances  of  the  case.  If  the 
facts  are  such  that  it  can  be  identified  clearly  this  should  be  done;  if 
they  will  not  admit  of  this,  then  the  best  approach  to  it  which  the 
facts  will  admit,  accompanied  by  a  statement  of  the  reasons  why  bet- 
ter description  is  not  given,  will  be  sufficient.  Sometimes  general 
description,  as  certain  articles  of  a  certain  kind,  quantity  and  value, 
situated  at  a  designated  place,  at  a  specified  time,  will  answer,  but 
these  general  indefinite  allegations  are  always  to  be  avoided  if  reason- 
able care  and  diligence  can  enable  the  pleader  to  do  so.  These  rules 
apply  to  real  and  personal  property,  to  corporeal  or  incorporeal 
rights.67a 


Videlicet. 

At  common  law  when  the  pleader  was  not  certain  as  to  his  proof  as 
to  time,  place,  quantity,  value,  etc.,  he  plead  the  matter  with  a  videlicet; 
that  is,  he  would  precede  the  specification  of  quantity,  etc.,  with  a  "to 
wit."  This  is  not  required  in  our  system  and  the  same  latitude  is 
allowed  as  to  proof  here  without  the  "to  wit"  that  was  permitted  under 
the  common  law  with  it.68 


•"Gillies  v.  Wofford,  26  Texas,  77;  Blakely  v.  Duncan,  4  Texas,  183;  Hoeser  v. 
Kraeka,  29  Texas,  451;  Stroop  v.  McKinzie,  38  Texas,  133;  Railway  Co.  v. 
Wallace,  74  Texas,  581,  12  S.  W.,  227. 

87  Forbes  v.  Moore,  32  Texas,  196. 

67a  Schneider  &  Davis  v.  Ferguson,  77  Texas,  572,  14  S.  W.,  154;  Beck  &  Co. 
v.  Avondino,  82  Texas,  315,  18  S.  W.,  690. 

88  Railway  Co.  v.  Witte,  68  Texas,  295,  4  S.  W.,  490. 


284  GENERAL   PRINCIPLES   OF   PLEADING. 

Allegations  of  the  Rights  of  Claimant. 

The  rights  of  the  claimant  in  the  matter  in  litigation  must  be  stated 
clearly  and  correctly.     The  recovery  can  not  be  of  a  larger  right  than 
is  claimed,  though  if  the  right  claimed  be  greater  than  that  proved, 
the  latter  may  be  recovered. 
Rights  Under  Contract. 

When  the  right  depends  upon  a  parol  contract,  this  must  be  set  up  truly 
according  to  its  legal  tenor  and  effect,  and  everything  necessary  to 
show  its  validity  and  the  plaintiff's  interests  thereunder  must  be 
stated. 

If  the  right  depends  on  a  written  contract,  the  same  rules  apply. 
In  such  cases  there  is  double  opportunity  for  uncertainty  and  mis- 
description, — first,  as  to  the  identity  of  the  contract,  and  second,  as  to 
the  legal  effect  of  it.  In  order  to  avoid  these  difficulties  it  is  not  neces- 
sary to  set  out  the  instrument  in  haec  verba,  nor  make  it  an  exhibit, 
but  its  legal  effect  and  substance  must  be  truly  averred.  As  to  the 
first,  it  seems  upon  principle  and  weight  of  authority  that  any  descrip- 
tion which  is  reasonably  sufficient  to  identify  it,  and  which  will  give 
the  adverse  party  such  information  regarding  it  as  would  prevent  a 
reasonable  person  from  being  misled  or  surprised,  is  sufficient. 

In  the  case  of  McClelland  v.  Smith,69  the  Supreme  Court  says: 
"There  are  many  other  cases  that  might  be  referred  to  on  this  subject ; 
we  do  not,  however,  deem  it  necessary  to  examine  them;  our  object  has 
been  to  ascertain,  if  possible,  whether  the  decisions  had  established 
any  principle  on  which  we  could  repose  in  disposing  of  the  question  of 
variance  in  the  multiform  aspect  in  which  such  misdescriptions  may 
be  presented.  We  believe  the  above  authorities  resolve  into  this  prin- 
ciple: that  if  the  misdescription  will  tend  to  mislead  and  surprise  the 
adverse  party,  it  should  be  noticed  by  the  court;  if  not,  it  may  be  dis- 
regarded. This  is  believed  to  be  a  reasonable  and  sensible  rule — one 
that  can  not  work  an  injury  to  either  party,  and  eminently  calculated 
to  harmonize  the  administration  of  law  with  the  justice  of  the  case." 

In  May  &  Co.  v.  Pollard,70  the  defendant  relied  on  a  receipt  declared 
on  as  dated  "Oct.  25,  1854."  The  receipt  offered  in  evidence  corre- 
sponded in  all  respects  except  the  date  was  "Oct  '"54."  Held,  no  vari- 
ance; the  plaintiff  could  not  have  been  surprised. 

In  Hays  v.  Samuels,71  "It  is  claimed  that  there  is  a  fatal  variance 
in  some  of  the  acceptances  as  described  in  the  account  as  to  the  names 
of  the  parties  in  whose  favor  the  same  were  drawn.  To  constitute  a 

69  3  Texas,  213,  1848. 

70  28  Texas,  677. 

71  55  Texas,  563. 


EULES   AS   TO    CERTAINTY.  285 

variance  the  misdescription  must  be  such  as  to  mislead  the  adverse 
party.  "McClelland  v.  Smith,  3  Texas,  210.  The  variance  insisted 
on  it  is  clear  is  not  such  as  could  have  misled  or  surprised  the  plaintiff 
in  error."72 

TJ?p  Texas  case  apparently  strongest  against  this  position  is  Brown  v. 
Martin.73  The  suit  was  on  a  note  declared  on  as  for  three  hundred 
and  fifty-six  dollars.  In  the  body  of  the  note,  the  last  word  stating 
the  amount  was  blotted  in  some  way,  but  looked  like  "fix."  The 
margin  gave  the  amount  in  figures  as  $355.  There  was  no  explanation 
of  the  discrepancy  or  the  condition  of  the  note  in  the  pleadings.  The 
introduction  of  the  note  was  objected  to  because  of  the  variance.  The 
Supreme  Court  held  the  variance,  in  the  absence  of  explanation  in  the 
pleading  to  be  fatal.  This  decision  was  by  a  most  excellent  court  and 
is  entitled  to  great  consideration,  but  it  does  not  seem  to  be  in  line 
with  the  latter  authorities. 

Shipman  v.  Fulcrod,73a  on  casual  reading,  eeems  to  hold  to  the  more 
narrow  rule,  but  closer  investigation  will  show  this  to  be  a  mistake. 
The  variance  there  was  in  the  middle  initial  of  the  name  of  one  of 
the  makers  of  the  note,  but  there  was  another  man  in  the  community 
of  the  name  alleged.  The  party  bearing  that  name  was  not  sued. 
The  other  payor  objected  and  alleged  that  he  had  good  defenses  against 
the  note  as  offered  in  evidence  which  were  not  available  against  the 
note  declared  on.  This,  of  course,  made  the  variance  a  most  material 
one,  and  brings  the  case  clearly  within  the  rule  announced.  This  is 
clearly  pointed  out  by  Judge  Willie  in  the  opinion  in  Wiebusch  &  Pat- 
terson v.  Taylor,74  "This  court  held  in  the  case  of  McClelland  v. 
Smith,  3  Texas,  210,  that  to  constitute  a  fatal  variance,  the  misdescrip- 
tion must  be  such  as  to  mislead  or  surprise  the  adverse  party,  otherwise 
it  should  be  disregarded  l>j  the  court.  This  is  held  to  be  the  rule 
even  where  the  plaintiff  has,  as  in  this  case,  assumed  to  give  an  exact 
copy  of  the  note.  The  same  stringent  rule  as  to  variance,  it  is  said 
does  not  obtain  in  this  country  as  is  enforced  in  the  English  courts. 

"In  accordance  with  this  decision — and  not  in  opposition  to  it — is 
the  case  of  Shipman  v.  Fulcrod,  42  Texas,  248.  There  the  variance 
was  in  the  initial  letter  of  the  middle  name  of  one  of  the  makers  of 
the  note.  ( The  petition  styled  the  makers,  'S.  W.  Walker  and  E.  Ship- 
man/  The  note  produced  in  evidence  was  signed  by  S.  P.  Walker 
and  E.  M.  Shipman.  The  defendant  Shipman  objected  to  the  admis- 
sion of  the  note  for  this  variance,  and  stated  in  his  bill  of  exceptions 

72  To  same  effect  are  Smith  v.  Shinn,  58  Texas,  3,  and  Bank  v.  Stephenson,  82 
Texas,  435,  18*  S.  W.,  583. 

™  19  Texas,  344. 
73a  42  Texas,  248. 
"64  Texas,  50. 


286  GENERAL  PRINCIPLES  OF  PLEADING. 

that  S.  P.  Walker  and  S.  W.  Walker  were  different  men;  and  that  the 
notes  were  not  the  same  but  different  instruments;  and  that  he  had  a 
good  and  valid  defense  to  the  note  signed  S.  P.  Walker  and  E.  M.  Ship- 
man.  It  was  apparent,  therefore,  that  the  admission  of  one  note  due 
from  defendant  under  a  suit  upon  another  note  due  from  him  was 
calculated  to  mislead  and  surprise  him,  and  this  brought  the  case  with- 
in the  rule  of  McClelland  v.  Smith,  supra.  A  defendant  called  upon 
and  preparing  himself  to  defend  one  demand  can  not  have  a  different 
'  one  sprung  upon  him  at  the  trial,  and  is  justly  entitled  to  claim  the 
variance  under  such  circumstances.  Besides  the  variance  there  was 
in  the  name,  and  hence  in  matter  in  some  measure  descriptive  of  the 
note  sued  on.  None  of  the  authorities  cited  to  sustain  the  opinion  of 
the  court  are  cases  of  such  immaterial  variance  as  the  present  dis- 
closes, but  relate  to  a  variance  in  the  sum,  magnitude,  date,  duration 
or  terms  of  the  note  of  an  important  character.  We  think  the  court 
did  not  err  in  admitting  the  note  in  evidence." 

As  stated  above,  it  is  not  essential  in  alleging  the  rights  or  liabilities  of 
parties  under  a  written  contract,  to  set  it  up  in  haec  verba,  nor  make 
it  an  exhibit,  but  its  legal  effect  and  substance  must  be  given  correctly. 
If  a  mistake  is  made  by  the  pleader,  either  in  his  interpretation  and  con- 
struction of  the  paper,  or  in  his  attempt  to  express  his  thought  on  that 
question,  so  that  he  describes  in  his  pleading  a  contract  different  in 
legal  tenor  and  effect  from  that  offered  in  evidence,  the  testimony  will 
not  be  received, 'hence  great  care  must  be  taken  both  in  forming  a  cor- 
rect judgment  as  to  the  import  of  the  instrument,  and  in  expressing 
that  judgment  in  pleading.  If  its  legal  effect  be  a  matter  of  doubt, 
it  is  always  safer  to  set  out  the  contract  literally.75 

If  the  contract  is  lengthy  and  its  parts  divisible,  the  pleader  need 
declare  on  only  those  parts  which  directly  relate  to  the  matter  in  con- 
troversy. If  the  contract  be  conditional,  that  is,  if  the  plaintiff  is 
bound  to  do  anything  as  a  condition  precedent  to  defendant's  liability, 
he  must  aver  performance  by  him.  If  the  obligation  on  him  is  concur- 
rent with  the  defendant's,  he  must  aver  readiness,  willingness,  and 
ability  to  perform  at  the  proper  time  and  place.76 

In  addition  to  the  statement  as  to  the  effect  of  the  contract,  the 
pleading  should  show  clearly  the  party's  connection  therewith  and  in- 
terests thereunder. 


75  Wooters  v.  Railway  Co.,  54  Texas,  298. 

78Holman  v.  Criswell,  13  Texas,  42;  Von  Norman  v.  Wheeler,  13  Texas,  319; 
Williams  v.  Edwards,  15  Texas,  41;  Mitchell  v.  Shepperd,  13  Texas,  484;  Kirk- 
land  v.  Little,  41  Texas,  459. 


RULES   AS   TO    CERTAINTY.  287 

Rights  not  Dependent  on  Contract. 

But  little  difficulty  is  ordinarily  found  in  setting  up  rights  purely 
personal,  but  if  the  right  involved  be  of  a  peculiar  nature  depending  on 
special  facts,  as  suit  for  an  office,  these  facts  must  be  set  up. 

If  the  right  grow  out  of  any  special  personal  relations,  as  a  parent's 
right  to  recover  for  injuries  to  the  minor  child  these  must  be  averred 
with  clearness  and  certainty. 

If  the  right  is  one  in  rem,  or  property  right,  it  should  be  so  stated. 
It  is  not,  however,  necessary  to  state  the  facts  going  to  make  up  the 
title,  but  the  general  allegation  of  ownership  is  all  that  is  necessary. 

Where. the  petition  avers  a  joint  right  in  two  or  more,  a  recovery 
can  not  be  had  on  proof  of  a  several  right  in  one  of  them  or  in  both.77 

Where  the  suit  is  for  conversion  of  personal  property  by  one 
claiming  to  be  the  sole  owner,  he  can  not  prove  joint  ownership  of  the 
property  in  himself  and  another.78 

A  suit  for  commissions  for  sale  of  land  to  one  person  will  not  be  sus- 
tained by  proof  of  sale  to  another.79 

When  an  agent  has  effected  a  sale,  and  drawn  for  his  commissions  on 
his  principal,  and  the  bill  is  not  paid,  and  the  agent  sues  on  the  bill 
and  fails  in  the  proof  on  that,  he  can  not  under  such  pleadings  recover 
for  his  commissions,  no  proper  allegations  being  made.80 

Where  a  note  was  made  payable  to  two  persons,  and  one  by  parol 
parted  with  his  title  and  interest  to  his  copayee,  and  he  then  indorsed 
the  note  to  a  third  party  and  he  sued  on  the  note  in  his  own  name, 
alleging  that  he  was  the  "owner,  holder,  and  assignee/'  the  note  was 
offered  in  evidence  and  objection  was  made  that  the  indorsement 
of  one  payee  was  not  good,  and  the  plaintiff  offered  to  prove  the  parol 
transfer  to  his  indorser,  the  proof  was  rejected  because  not  correspond- 
ing with  the  allegation,  the  court  saying:  "We  have  repeatedly  de- 
clared that  one  of  the  most  essential  and  peculiar  advantages  of  our 
system  of  practice  consisted  in  the  rule  that  the  allegata  and  probata 
must  agree,  without  regard  to  inferences  and  presumptions  tolerated 
under  the  common  law  pleading.  We  would  hold  a  relaxation  or  de- 
parture from  this  rule  as  a  most  dangerous  encroachment  on  our  sys- 
tem, and  if  permitted  to  go  unreversed  would  become  a  precedent  for 
further  encroachments,  and  might  terminate  in  the  gradual  intro- 
duction of  much  of  the  fiction  of  the  common  law  declaration  and 

77  Longcope  v.  Bruce,  44  Texas,  437. 

78  Stackley  v.  Pierce,  28  Texas,  334. 

79  Armstrong  v.  O'Brien,  83  Texas,  646,  19  S.  W.,  268. 
""Tinsley  v.  Penniinan,  83  Texas,  54,  18  S.  W.,  718. 


288  GENERAL    PRINCIPLES   OF   PLEADING. 

pleading  that  was  obviously  intended  to  be  repudiated  and  avoided 
by  the  organization  of  our  system  of  jurisprudence."81 

The  same  general  rules  apply  to  the  statement  of  the  violation  of 
ti.e  right  by  the  defendant.  A  number  of  cases  bearing  on  this  have 
been  cited  and  quoted  from  under  head  "Facts,"  supra,  which  may 
be  profitably  consulted. 

If  the  alleged  wrong  be  a  breach  of  contract,  written  or  parol,  the 
averments  should  show  the  defendant's  duty  under  the  contract  and 
his  failure  to  perform.  If  the  wrong  be  personal,  the  facts  constitut- 
ing the  violation  should  be  stated  with  reasonable  certainty.  If  the 
wrong  affect  some  property  right,  the  acts  or  omissions  resulting  in  the 
injury,  and  the  connection  therewith,  and  responsibility  therefor,  of  the 
party  sought  to  be  charged,  should  be  alleged. 


Allegations  of  Negligence. 

There  seems  to  be  some  doubt  in  the  authorities  as  to  the  proper 
manner  of  alleging  negligence,  and  the  cases  are  hard  to  reconcile  on 
it.  On  principle,  negligence  is  undoubtedly  a  mixed  question  of  law" 
and  fact,  and  the  general  statement  that  the  party  complained  against 
has  been  negligent  is  no  more  an  allegation  of  fact  than  a  similar  charge 
of  fraud  would  be.  But  if  this  point  were  conceded,  and  it  were  taken 
to  be  an  allegation  of  fact,  it  is  not  certain  and  accurate,  and  gives  neither 
the  court  nor  the  adverse  party  any  information  as  to  the  real  ground 
of  complaint.  As  a  legal  term,  it  embraces  alike  heedless  omissions 
and  intentional  wrongs,  acts  of  omission  and  commission;  and  a  charge 
of  negligence  is  no  more  specific  than  the  familiar  formula,  "We 
have  done  those  things  which  we  ought  not  to  have  done,  and  have 
left  undone  those  things  which  we  ought  to  have  done,"  and  on  princi- 
ple can  not  be  good  pleading. 

In  the  first  Texas  case  involving  this  question,  Young  v.  Lewis,82  it 
was  held  that  facts  constituting  negligence  could  not  be  considered 
unless  there  were  appropriate  allegations.  The  record  shows,  however, 
that  there  was  no  attempt  to  plead  negligence  at  all  in  the  case. 

In  Gulf,  Colorado  and  Sante  Fe  Eailway  Company  v.  Smith,83  the 
averment  is,  "and  while  plaintiff  was  so  lawfully  in  defendant  com- 
pany's said  car  as  a  passenger  therein,  through  the  gross  negligence 
and  carelessness  and  default  of  said  company,  its  agents,  servants,  and 
employes,  said  car  was  run  off  the  track  and  thrown  from  the  road- 
bed of  said  railroad  and  turned  over  from  the  embankment  thereof. 

81  Roseborough  v.  Gorman,  6  Texas,  314. 

82  9  Texas,  77,  1852. 

*'74  Texas,  276,  11  S.  W.,  1104. 


RULES   AS   TO    CERTAINTY.  289 

*  *  *  And  plaintiff  avers  that  his  said  injuries  were  caused  and 
occasioned  by  the  gross  negligence,  carelessness,  and  default  of  the 
defendant  company,  its  agents,  servants,  and  employes." 

The  defendant  filed  a  special  exception  to  the  petition  because  there 
was  no  specific  charge  of  negligence.  This  demurrer  was  overruled. 
The  Supreme  Court  sustained  this  ruling  on  the  doctrine  that  the  plead- 
ings need  never  go  beyond  what  is  required  to  be  proven,  and  that 
under  the  law  applicable  between  passengers  and  carriers,  the  derail- 
ment of  a  car  is  sufficient  proof  of  absence  that  high  degree  of  care 
required  for  the  passenger's  safety,  and  no  further  evidence  would  be 
required,  and  hence  as  between  such  parties  this  averment  was  good. 

In  the  later  case  of  Missouri  Pacific  Eailway  Company  v.  Hennessy,84 
the  Supreme  Court,  through  Judge  Collard,  commissioner,  says: 

"It  is  elementary  and  statutory  in  this  State  that  the  petition  shall 
set  forth  'a  full  and  clear  statement  of  the  cause  of  action — that  is, 
the  facts  which  constitute  the  cause  of  action.'  Eev.  Stats.,  art.  1195; 
Ramsey  v.  McCauley,  2  Texas,  189;  11  Texas,  329;  28  Texas,  545;  22 
Texas,  609;  24  Texas  157.  This  is  necessary  in  order  to  apprise  the 
opposite  party  of  the  facts  that  are  expected  to  be  proved.  A  mere 
abstract  proposition  that  the  defendant  was  guilty  of  negligence 
which  resulted  in  injury  to  plaintiff  would  not  be  sufficient;  the  act 
done  or  omitted  constituting  negligence  must  be  averred  and  proved. 
Hence  it  follows  that  an  act  done  or  omitted  which  is  relied  on  to  es- 
tablish negligence  must  be  alleged  or  proof  of  it  will  not  be  allowed. 

"Where  from  the  nature  of  the  case  the  plaintiff  would  not  be  ex- 
pected to  know  the  exact  cause  or  the  precise  negligent  act  which  be- 
comes the  cause  of  an  injury,  and  where  the  facts  are  peculiarly 
within  the  knowledge  of  the  defendant,  he  would  not  be  required  to  al- 
lege the  particular  cause,  but  it  would  be  sufficient  to  allege  the  fact 
in  a  general  way,  as  that  there  was  a  defect  in  the  machinery  or  structure, 
or  want  of  skill  in  operating  on  the  part  of  its  servants,  and  some 
such  fact  as  would  give  the  defendant  notice  of  the  character  of 
proof  that  would  be  offered  to  support  the  plaintiff's  case." 
-  The  question  again  arose  between  a  passenger  and  carrier  in  Gulf, 
Colorado  and  Santa  Fe  Railway  Company  v.  Wilson.85  Judge  Stayton 
says :  "An  exception  to  the  petition  on  the  ground  that  it  did  not  state 
the  particular  acts  of  negligence  which  caused  the  derailment  of  the  car 
and  injury  to  appellant  was  overruled  and  this  is  assigned  as  error. 

"This  question  was  considered  in  Railway  Company  v.  Smith,  74 
Texas,  276.  In  that  case,  as  in  this,  the  averments  of  the  petition 
were  in  substance  that  the  car  in  which  the  plaintiff  was,  was  derailed 

84  75  Texas,  155,  12  S.  W.,  608. 

83  79  Texas,  371,  15  S.  W.,  280. 
19 — Pleadings. 


290  GENERAL  PRINCIPLES  OF  PLEADING. 

through  the  negligence  of  the  railway  company  and  its  servants,  and 
thus  the  plaintiff  was  injured. 

"This  was  held  sufficient,  and  the  reasons  for  this  ruling,  as  well  as 
the  citation  of  cases  supporting  it,  will  be  found  in  that  case. 

"There  are  some  expressions  in  the  opinion  in  Eailway  v.  Hen- 
nessy,  75  Texas,  155,  which  may  seem  to  lead  to  a  contrary  conclusion, 
but  an  examination  of  the  case  will  show  that  the  question  in  it  was 
whether  the  plaintiff  should  have  been  permitted  to  prove  an  act  of 
negligence  not  alleged,  when  he  had  alleged  that  the  accident  resulted 
from  other  specific  acts  of  negligence." 

In  the  still  later  case  of  Texas  and  Pacific  Eailway  Company  v. 
French,86  the  question  was  presented  whether  a  plaintiff  who  had 
clearly  specified  several  acts  of  negligence  as  the  cause  of  his  injuries 
could,  in  addition  to  those  alleged,  prove  other  acts  not  alleged.  It  was 
held  that  he  could  not. 

The  true  rules  would  seem  to  be  these:  That  a  general  charge  of 
negligence  is  an  allegation  of  a  mixed  matter  of  law  and  fact,  and 
ought  not  to  be  good,  particularly  against  a  special  demurrer.  That 
in  pleading  negligence  the  general  rule  applies  that  no  more  need  be 
plead  than  is  required  to  be  offered  in  evidence,  and  hence  when  there 
is  some  special  relation  and  duty  between  the  plaintiff  and  defendant, 
such  as  common  carrier  and  passenger,  that  the  pleader  need  only  aver 
such  general  facts  as  are  sufficient  to  prove  the  violation  of  such 
special  duty,  but  that  in  every  case  the  proof  must  conform  to  and  be 
limited  by  the  allegations  of  negligence  as  made  in  the  pleadings. 


Statutory  Requirements  as  to  Certainty. 

There  are  some  statutory  requirements  regarding  certainty  in  plead- 
ing which  must,  of  course,  be  observed. 

Payment. 

"In  every  action  in  which  a  defendant  shall  desire  to  prove  any 
payment,  counterclaim  or  set-off,  he  shall  file  with  his  plea  an  ac- 
count stating  distinctly  the  nature  of  such  payment,  counterclaim,  or 
set-off,  and  the  several  items  thereof;  and  on  failure  to  do  so  he  shall 
not  be  entitled  to  prove  the  same  unless  it  be  so  plainly  and  particu- 
larly described  in  the  plea  as  to  give  the  plaintiff  full  notice  of  the  char- 
.actcr  thereof."87 

Though  this  section  names  only  the  defendant,  it  applies  equally  to 

86  86  Texas,  96,  23  S.  W.,  642. 
187  Rev.  Stats.   1895,  art.   1266. 


RULES   AS   TO    CERTAINTY.  291 

the  plaintiff  when  the  defendant  has  become  the  actor  by  cross-action 
and  the  plaintiff  desires  to  interpose  any  of  the  specified  defenses  to 
the  cross-action.88 

Accounts. 

"In  all  accounts,  except  those  between  merchant  and  merchant  as 
aforesaid,  their  factors  and  agents,  the  respective  times  and  dates  of 
{lie  delivery  of  the  several  articles  charged  shall  be  particularly  specified, 
and  limitation  shall  run  against  each  item  from  the  date  of  such  delivery, 
unless  otherwise  specially  contracted."89 

These  statutes  will  be  further  discussed  in  considering  the  essentials 
of  petitions  and  answers. 


Facts  Peculiarly  Within  Knowledge  of  Adverse  Party. 

The  pleader  is  relieved  from  the  necessity  of  using  the  degree  of  ac- 
curacy and  certainty  which  would  be  required  under  other  circum- 
stances when  the  facts  are  not  known  to  him  and  are  peculiarly  within 
the  knowledge  of  the  other  party.90 

Where  this  excuse  is  relied  on  it  must  be  stated  in  the  pleading.91 


Relaxation  of  the  Rule  to  Prevent  Prolixity. 

It  is  said  that  there  is  a  relaxation  of  the  rules  as  to  certainty,  when 
to  insist  upon  them  would  result  in  great  prolixity;  but  this  doctrine, 
if  true,  should  never  be  resorted  to  except  in  extreme  cases  really  re- 
quiring its  application.  It  should  never  be  made  an  excuse  for  sloth 
and  carelessness  in  the  preparation  and  presentation  of  a  case.92 


Relaxation  Growing  Out  of  the  Nature  of  the  Subject. 

Xo  further  particularity  is  required  than  the  nature  of  the  thing, 
and  the  circumstances  of  the  pleader,  admit  of.  As  in  describing 
goods,  etc.,  constituting  the  stock  of  a  mercantile  establishment,  not  in 

88  Rev.  Stats.  1895,  art.   1192. 
88  Rev.  Stats.  1895,  art.  3355. 

90  Railway  Co.  v.  Easton,  2  Texas  Civ.  App.,  380,  21  S.  W.,  575;  Railway  Co.  v. 
Smith,  74  Texas  276,  11  S.  W.,  1104;  McFarlan  v.  Mooring,  50  Texas,  118. 

81  Schneider  &  Davis  v.  Ferguson  &  Son,  77  Texas,  572,  14  S.  W.,  154. 
"2  Andrews'   Stephens  on  Pleading,   368. 


292  GENERAL   PRINCIPLES   OF   PLEADING. 

possession  of  the  pleader  or  his  client,  and  of  which  no  inventory  is 
procurable,  he  may  use  general  terms.93 

Matters  not  constituting  the  gist  of  the  action,  but  which  are  merely 
aggravation,  extenuation,  or  inducement,  need  not  be  alleged  with  the 
same  exactness  and  particularity  as  the  more  important  and  control- 
ing.94 


Exhibits. 

There  seems  to  be  some  uncertainty  as  to  the  use  and  purpose  of 
making  exhibits  to  pleading  and  the  aid  which  they  may  render  in 
construing  it.  The  first  distinction  to  be  kept  in  mind  is  between  in- 
struments upon  which  the  right  claimed  in  the  pleading  is  founded,  and 
those  which  are  evidence  of  collateral  matters.  The  former  may  be 
made  exhibits  to  the  pleading  declaring  on  them;  the  latter  can  not  be 
made  exhibits  at  all.  The  effort  of  the  pleader  to  do  so  by  attaching 
the  paper  or  copy  and  referring  to  it  is  unavailing.95 

While  exhibits  of  the  kind  permitted  may  be  made,  they  are  to  aid 
the  pleading  by  making  more  certain  and  readily  understood  allega- 
tions contained  in  the  pleading,  and  can  not  supply  the  place  of  an 
omitted  fact.96 


RULES  AS  TO  DIRECTNESS. 

"It  is  an  elementary  principle  that  the  pleader  must  state  the  facts 
of  his  case  by  averment  direct  and  positive,  and  not  leave  them  to  be 
deduced  by  argument  or  inference."97 

This  rule  is  often  expressed  by  saying  that  a  pleading  must  not  be 
argumentative.  This  is  somewhat  ambiguous,  but  is  held  to  mean  that 

93  Stephens  on  Pleading,  375 ;  Chandler  v.  Mukling,  22  Texas,  37 ;   Bourcier  v. 
Edmondxon,  58  Texas,  675;   Hurst  v.  Mellinger,  73  Texas,  188,   11  S.  W.,   184; 
Fagan  v.  McWhirter,  71  Texas,  567,  9  S.  W.,  677;  Veck  v.  Holt,  71  Texas,  715, 
9  S.  W.,  743;  Hamburg  v.  Wood  &  Co.,  66  Texas,  168,  18  S.  W.,  623. 

94  Andrews'  Stephens  on  Pleading,  378. 

95  Rule  19  for  District  and  County  Courts. 

18  Randall  v.  Rosenthall,  31  S.  W.,  823;  Beal  v.  Alexander,  6  Texas,  537;  Thomp- 
son v.  Eanes,  32  Texas,  194;  Spencer  v.  McCarty,  46  Texas,  213;  Tucker  v.  An- 
derson, 25  Texas,  159;  Burks  v.  Watson,  48  Texas-,  115;  Pool  v.  Sanford,  52 
Texas,  635 ;  Texas  &  St.  L.  Ry.  Co.  v.  Ross  &  Co.,  62  Texas,  447 ;  Longley  v.  Ca- 
ruthers,  64  Texas,  288;  Dunlap  v.  Yoakum,  18  Texas,  583;  Milliken  v.  Callahan 
Co.,  69  Texas.  206,  6  S.  W.,  681;  Freiberg  v.  Magale,  70  Texas,  118,  7  S.  W.,  684; 
Wyne  v.  Bank,  82  Texas,  378,  17  S.  W.,  918. 

97  Thompson  v.  Munger,  15  Texas,  529;  Seeligson  v.  Hobby,  51  Texas,  147;  Veck 
v.  Holt,  71  Texas,  715,  9  S.  W.,  743;  Duck  v.  Peeler,  74  Texas,  268,  11  S.  W.,  1111. 


RULES   AS   TO    CONSISTENCY.  293 

the  pleading  must  not  be  so  drawn  that  any  material  fact  is  left  to 
inference  or  deduction,  or  to  be  argued  from  those  facts  stated,  but 
each  material  issuable  fact  should  be  averred  positively  and  directly. 


RULES  AS  TO  CONSISTENCY. 

At  common  law  great  stress  is  laid  upon  the  consistency  of  pleadings. 
This  was,  of  course,  absolutely  essential  in  a  system  which  permitted 
only  one  issue  and  made  the  whole  case  depend  on  its  decision.  But 
in  Texas  very  different  principles  apply,  and  the  plaintiff  or  defendant 
may  present  his  facts  in  as  many  different  groupings,  or  make  as  many 
independent  presentations  of  them  as  he  sees  fit.  It  is  not  at  all  neces- 
sary that  these  several  presentations  be  consistent,  and  indeed  the  very 
purpose  of  this  privilege  would  be  defeated  if  consistency  were  re- 
quired. So  that  it  is  no  objection  to  a  pleading  that  one  count  in  it 
contradicts  another. 

The  rule  requiring  consistency,  however,  does  apply  to  the  different 
allegations  in  the  same  count.  These  must  be  harmonious  and  stand 
together,  but  count  one  and  count  two  may  be  absolutely  irreconcilable 
and  the  pleading  still  good.98 

These  inconsistent  pleas  can  not  be  used  in  evidence  to  disprove 
each  other." 

Each  count  should  be  consistent  with  itself  and  must  be  tested  by 
id-  own  averments.100 


FACTS  MUST  BE  ACCORDING  TO  TESTIMONY. 

The  facts  stated  must  truly  represent  the  case  and  correspond  to  the 
proof  to  be  offered.  However  good  the  cause  of  action  or  defense  of 
the  litigant  may  be,  it  is  of  no  avail  to  him  unless  it  has  been  plead. 
Even  if  the  facts  should  be  in  evidence  they  would  avail  nothing,  for 
pleading  and  proof  are  both  necessary,  they  must  correspond,  and  the  re- 
covery can  only  be  based  upon  them  both. 

The  usual  formula  for  expressing  this  rule  is  that:  the  allegata  and 
the  probata  must  correspond.  If  they  do  not,  the  variance  is  fatal  as 


113  Hillebrand  v.  Booth,  7  Texas,  499;  Fowler  v.  Davenport,  21  Texas,  627;  Dun- 
can v.  Magette,  25  Texas,  255;  Smith  v.  Sublett,  28  Texas,  1159;  Lemmon  v.  Han- 
ley,  28  Texas,  220 ;  Ex.  Print.  Co.  v.  Copeland,  64  Texas',  357 ;  Welden  v.  Texas 
M.  Co.,  65  Texas,  487;  Young  v.  Kuhn,  71  Texas,  651,  9  S.  W.,  650;  Railway  Co. 
V.  Whitley,  77  Texas,  130,  13  S.  W.,  853. 

"Duncan  v.  Magette,  25  Texas,  255. 

100  Lemmon  v.  Hanley,  28  Texas,  220;  Railway  Co.  v.  Whitley,  77  Texas,  130,  13 
S.  W.,  853;  Hillebrand  v.  Booth,  7  Texas,  499. 


294  GENERAL   PRINCIPLES   OF   PLEADING. 

an  objection  to  the  testimony  when  offered,  and  if  it  is  improperly  re- 
ceived, through  inadvertence  or  error,  it  can  not  be  the  basis  of  judg- 
ment by  the  court. 

The  authorities  previously  cited  establish  this  proposition  so  fully 
and  clearly  that  it  seems  almost  useless  to  cite  others.  Still,  a  few  of 
the  most  direct  may  not  be  out  of  place  as  illustrating  the  rule. 

Beginning  with  McKinney  v.  Bradbury,101  we  find  this  statement  by 
the  Supreme  Court  of  the  Eepublic :  "By  a  well  settled  rule  of  practice 
as  old  as  the  law  itself,  the  party  making  the  averment  must  show 
that  the  allegata  and  probata  must  correspond." 

Again,  in  Hamilton  v.  Butler,102  the  same  court,  speaking  of  the 
plaintff  s  claim  or  right  to  recover  on  a  cause  of  action  proved  but  not 
plead,  says:  "He  can  not  call  upon  this  court  to  give  judgment  upon 
issues  never  made  in  his  pleadings  in  the  court  below.  He  can  not 
expect  to  recover  of  the  defendants  upon  allegations  he  has  never  called 
upon  them  to  answer." 

In  Minis  v.  Mitchell,103  which  is  so  often  cited  on  questions  of 
pleading,  the  Supreme  Court  of  the  State  says:  "The  proof  must  be 
according  to  the  allegations  of  the  parties,  and  if  proofs  go  to  matters 
not  within  the  allegations,  the  court  can  not  judicially  act  upon  them 
as  a  ground  for  its  decision,  for  the  pleadings  do  not  put  them  in  con- 
testation. The  allegata  and  probata  must  reciprocally  meet  and  con- 
form to  each  other." 

In  McGreal  v.  Wilson,104  the  plaintiff  sued  for  a  certain  sum  as 
the  contract  price  for  services  rendered,  for  which  his  petition  was 
good;  he  was  held  not  entitled  to  recover  the  reasonable  value  of  his 
services  on  a  quantum  meruit,  though  his  proof  fully  sustained  the  lat- 
ter cause  of  action.  Here  the  services  were  the  same  in  the  pleadings 
and  proof,  but  the  pleading  declared  on  a  contract  with  express  terms 
as  to  amount  to  be  paid,  and  the  proof  did  not  show  such  a  contract, 
but  one  in  which  the  agreement  was  to  pay,  not  a  fixed  sum,  but  so 
much  as  the  services  were  reasonably  worth,  usually  called  an  implied 
contract.  The  court  held  the  variance  fatal  and  that  the  plaintiff  could 
not  recover. 

This  is  also  true  in  suits  for  goods  sold.  The  contract  must  be 
proved  as  alleged.  Proof  of  express  contract  will  not  support  an  allega- 
tion of  an  implied;  nor  will  proof  of  an  implied  contract  support  an 
express.  This  doctrine  was  recognized  and  enforced  in  Gammage  v. 
Alexander,105  in  these  words: 

101Dallam,  441,   1841. 
102Dallam,  576,  1844. 
103 1  Texas,  448,  1846. 
104  9  Texas,  426,  1853. 
105 14  Texas,  414. 


DUPLICITY.  295 

"Appellees  declared  upon  an  express  contract,  and  there  is  no  plainer 
rule  of  law  than  that  they  must  be  held  to  their  allegation,  and  proof  of 
an  implied  contract  will  not  sustain  their  allegations."106 

In  instances  of  this  kind,  unless  the  proof  is  all  consistent  and  positive, 
the  pleader  should  present  both  phases  of  the  question  by  alleging  express 
and  implied  contracts  in  different  counts. 

A  petition  alleging  a  contract  between  the  plaintiff  on  the  one  side 
and  three  parties  on  the  other  is  not  sustained  by  proof  of  a  contract 
made  between  plaintiff  and  two  of  the  three  parties  alleged.107 

In  Parker  v.  Beavers,108  the  court  says :  "There  is  no  principle  of  law 
more  clearly  settled  than  that  a  plaintiff  in  a  court  of  equity  as  well 
as  at  law  must  recover,  if  at  all,  upon  the  identical  case  on  which  he 
has  based  his  right  to  recover  in  stating  his  cause  of  action." 

The  same  principle  applies  in  cases  in  which  the  defendant  under- 
takes to  set  up  new  mater  in  avoidance. 


DUPLICITY. 

At  common  law  it  is  imperative  that  the  pleadings  be  conducted  so 
that  the  case  may  ultimately  go  to  trial  on  one  issue  only,  and  much 
attention  was  given,  and  many  rules  made  and  enforced,  to  secure  this 
result.  These  rules  are  given  as  lucidly  as  possible  by  Mr.  Stephens  in 
his  work  on  Pleading,  from  which  the  following  extracts  are  taken: 

"The  following  is  an  instance  of  duplicity  in  a  plea  in  bar :  In  tres- 
pass for  breaking  a  close,  and  depasturing  the  herbage  with  cattle,  if 
the  defendant  pleads  that  A  had  a  right  of  common,  and  B  also  a 
right  of  common  in  the  close,  and  that  the  defendant  as  their  servant, 
and  by  their  command,  entered  and  turned  in  the  cattle  in  exercise 
of  their  rights  of  common,  the  plea  is  bad  for  duplicity;  because  the 
title  of  either  one  or  other  of  the  commoners,  and  the  authority  derived 
as  his  servant,  would  have  alone  constituted  a  sufficient  answer  to  the 
declaration.  Duplicity  in  the  replication  may  be  thus  exemplified: 
The  plaintiff  declared  in  trespass  for  breaking  and  entering  his  stable, 
cutting  asunder  a  beam,  and  throwing  down  the  tiles  of  the  roof.  The 
defendant  justified,  as  servant  of  Sir  H.  G. ;  and  pleaded  that  Sir  H. 
G.  was  seized  of  a  wall  in  his  demesne  as  of  fee,  and  because  the  beam 
was  placed  in  the  wall  of  the  said  Sir  H.  G.  without  his  consent,  the 
defendant,  as  his  servant,  in  order  to  remove  this  nuisance,  did  enter 


106Nunn  v.  Townes,  23  S.  W.,  1117;  Shiner  v.  Abbey,  77  Texas,  1,  13  S.  W., 
613;  Krohn  v.  Heyn,  77  Texas,  319,  14  S.  W.,  130;  Reese  v.  Medlock,  27  Texas, 
120. 

10T  Stewart  v.  Gordon,  65  Texas,  344. 
108  9  Texas,  410. 


296  GENERAL   PRINCIPLES   OF    PLEADING. 

the  stable  and  cut  the  beam  as  near  t.o  the  wall  as  he  could,  doing  as 
little  damage  as  possible;  and  thereby  the  tiles  were  thrown  down. 
The  plaintiff  replied,  traversing  that  the  wall  was  Sir  H.  G.'s ;  and  then, 
with  a  protestation  that  the  wall  was  not  his,  farther  pleaded  that  the 
defendant,  of  his  own  wrong,  did  throw  down  the  tiles  from  the  cutting 
the  beam  as  aforesaid.  The  court  held  that  the  first  traverse  being  a 
complete  answer  to  the  whole,  the  second  made  the  replication  double." 
"Singleness  Eelates  to  a  Single  Claim. — The  object  of  this  rule  being 
to  enforce  a  single  issue  upon  a  single  subject  of  claim  admitting  of 
several  issues,  where  the  claims  are  distinct,  the  rule  is,  accordingly, 
carried  no  farther  than  this  in  its  application.  The  declaration,  there- 
fore, may  in  support  of  several  demands,  allege  as  many  distinct  mat- 
ters as  are  respectively  applicable  to  each.  Thus,  let  one  of  the  examples 
above  given,  with  respect  to  the  declaration,  be  so  far  varied  as  to  substi- 
tute for  the  case  of  an  action  in  debt  on  a  penal  bill  for  the  penalty  ac- 
crued in  consequence  of  nonpayment  of  a  sum  by  several  installments, 
the  case  of  an  action  of  covenant  to  pay  that  sum  by  similar  install- 
ments. In  this  latter  case  the  plaintiff  might,  without  duplicity,  de- 
clare that  the  defendant  'did  not  pay  the  said  total  sum,  or  any  part 
thereof,  upon  the  several  days  aforesaid/  For  he  does  not,  as  in  the  ac- 
tion upon  the  penal  bill,  found  upon  such  nonpayment  a  single  claim, 
viz.,  the  claim  to  the  penalty  of  seven  pounds;  there  being  no  penalty 
in  question  his  claims  are  multiplied  in  proportion  to  the  number  of 
nonpayments;  that  is,  he  is  entitled  to  ten  shillings  in  respect  to  the 
first  default,  and  ten  shillings  more  upon  each  of  the  rest.  The  alle- 
gation of  several  defaults  is  therefore,  in  this  case,  the  allegation  of 
so  many  distinct  demands,  and  consequently  allowable.  So  the  plea 
though  it  must  not  contain  several  answers  to  the  whole  of  the  decla- 
ration, may  nevertheless  make  distinct  answers  to  such  parts  of  it  as 
relate  to  different  matters  of  claim  or  complaint.  Thus,  in  the  preced- 
ing example  of  duplicity  in  a  plea  in  bar,  if  the  claim  were  a  little 
varied,  and  the  defendant,  being  charged  with  putting  five  beasts  on 
the  common,  had  pleaded  that  A  and  B  had  respectively  rights  of  com- 
mon there,  and  that  he,  as  the  servant  of  A,  put  in  two  of  the  beasts 
in  respect  of  his  common  right,  and  as  the  servant  of  B  put  in  three 
in  respect  of  his  common  right,  there  would  no  longer  be  duplicity; 
for  he  pleads  the  several  titles,  not  as  several  answers  to  the  same  sub- 
ject of  claim  or  complaint,  but  as  distinct  answers  to  different  mat- 
ters of  complaint  arising  in  respect  of  different  cattle.  So  in  the 
replication,  and  other  subsequent,  a  severance  of  pleading  may  take 
place  in  respect  of  several  subjects  of  claim  or  complaint.  Thus,  if  an 
action  be  brought  for  trespass  in  closes  of  A  and'  B,  and  defendant 
pleads  a  single  matter  of  defense  applying  to  both  closes,  the  plaintiff 
is  still  at  liberty,  in  his  replication,  to  give  one  answer  to  so  much  of 
the  plea  as  applies  to  close  B. 


MULTIFARIOUSNESS.  297 

"The  power,  however,  of  alleging  in  a  plea  distinct  matters  in  answer 
to  such  parts  of  the  declaration  as  relate  to  different  claims,  seems  to  be 
subject  to  this  restriction ;  that  neither  of  the  matters  so  alleged  be  such 
as  would  alone  be  sufficient  answer  to  the  whole.  Thus,  if  an  action 
be  brought  on  two  bonds,  though  the  defendant  may  plead,  as  to  one, 
payment,  and  as  to  the  other,  duress,  yet  if  he  pleads  as  to  one  a  release 
of  all  actions,  and  as  to  the  other,  duress,  it  will  be  double,  for  the  re- 
lease is  alone  sufficient  answer  to  both  bonds." 

This  rule  has  no  place  in  our  law.  The  plaintiff  is  permitted  to 
state  as  many  rights  in  the  same  thing  and  as  many  violations  of  the 
same  right  or  of  different  rights  in  the  same  thing  as  he  sees  fit,  and 
the  defendant  may  plead  as  many  defenses  to  the  plaintiff's  cause  of 
action  as  he  may  have,  and  no  objection  can  be  urged  against  either  of 
them. 


MULTIFARIOUSNESS. 

Mr.   Anderson   defines   multifariousness   as   follows: 

"Multifariousness.  (L.  multus,  many;  fari,  to  speak;  claiming  va- 
rious things.)  Blending  in  one  bill  in  equity  matters  which  in  their 
nature  are  distinct  and  independent. 

"Improperly  joining  in  one  bill  distinct  and  independent  matters,  and 
thereby  confounding  them.  (Story  Eq.  PL,  sees.  271,  530;  104  U.  S., 
251;  98  Id.,  604.) 

"Embracing  in  the  same  bill  distinct  matters,  which  do  not  affect 
all  the  defendants  alike.  (Payne  v.  Hook,  7  Wall.,  433  [1868], 
Davis,  J.) 

"A  bill  is  subject  to  this  defect,  if  one  of  two  complainants  has  no 
standing  in  court,  if  they  set  up  antagonistic  causes  of  action,  or  the 
relief  for  which  they  respectively  pray  involves  totally  different  ques- 
tions, requiring  different  evidence  and  leading  to  different  decrees. 
(Walker  v.  Powers,  104  U.  S.,  245,  250  [1881],  cases,  Miller,  J.; 
Daniel  Ch.  Pr.,  336.) 

"But  charging  different  sources  of  right  does  not  introduce  the  vice. 
(Welford,  Eq.  PL,  93;  Cumberland  Valley  K.  Co.'s  Appeal,  62  Pa., 
227-8  [1869].) 

"It  is  impracticable  to  lay  down  any  rule  as  to  what  constitutes  mul- 
tifariousjiess,  as  an  abstract  proposition.  Each  case  must  depend  upon 
its  own  circumstances,  and  be  left  necessarily,  to  the  sound  discretion 
of  the  court.  It  can  not  be  objected  to,  as  of  right,  except  by  de- 
murrer, plea,  or  answer;  and  not  at  all,  at  so  late  a  period  as  the  hear- 
ing, or  in  the  appellate  court.  But  it  may  be  taken  by  the  court  sua 
sponie,  when  necessary  to  the  administration  of  justice.  (Oliver  v. 
Platt,  3  How.,  412,  411  [1845],  cases,  Story,  J. ;  Story,  Eq.  PL,  sec. 


298  GENERAL   PRINCIPLES   OF   PLEADING. 

747;  Barney  v.  Latham,  103  U.  S.,  215  [1880];  Hill  v.  Hill,  79  Va.,  592 
[1884].) 

"As  a  rule  the  court  will  not  subject  parties  to  the  expense,  vexation, 
and  delay  of  several  suits,  where  the  transactions  constituting  the  sub- 
ject of  the  litigation,  or  out  of  which  the  litigation  arises,  are  so  con- 
nected by  their  circumstances  as  to  render  it  proper  and  convenient 
that  they  should  be  axamined  in  the  same  suit,  and  full  relief  given  by 
one  comprehensive  decree.  (Sheldon  v.  Keokuk  Packet  Co.,  10  Biss., 
473  [1881],  Harlan,  J.;  8  F.  E.  770;  United  States  v.  United  Pacific 

E.  Co.,  98  U.  S.,  604  [1878]  ;  De  Wolf  v.  Sprague  Mfg.  Co.,  49  Conn., 
292-93,  302  [1881]  ;  Mining  Debris  Case,  8  Saw.,  628,  636  [1883]  ;  16 

F.  E.  32;  8  Id.  378,  703;  18  Blatch,  420;  19  Id.  531;  30  Conn.,  323; 
68  Ga.,  60 ;  14  111.,  25 ;  2  Gray,  467 ;  9  Mich.,  71 ;  32  N".  H.,  25 ;  58  Id., 
421;  66  Barb.,  12;  13  T.  L,  413.) 

"A  different  rule  would  often  prove  oppressive  and  mischievous,  and 
result  in  no  benefit  to  a  litigant  whose  objection  was  not  simply  to 
harass  his  adversary,  but  to  ascertain  his  legal  rights.  (Potts  v.  Hahn,. 
32  F.  E.,  662  [1887].)" 

The  Texas  cases  and  rules  on  the  subject  of  proper  and  improper 
joinder  of  causes  of  action  have  been  given  in  the  preceding  chapter  on 
"Joinder  and  Misjoinder  of  Causes  of  Action,"  and  need  not  be  re- 
peated. 

Multifariousness  is  the  combination  in  one  pleading  of  two  or  more 
inconsistent  and  repugnant  causes  of  action  or  grounds  of  defense 
which,  under  the  law,  should  not  be  plead  together. 

Duplicity  is  the  double  or  multiform  statement  in  same  pleading  of 
one  cause  of  action  or  defense. 

The  two  should  not  be  confounded,  for  the  former,  multifariousness, 
is  always  a  defect,  and  the  latter  is  always  permissible  under  our 
system. 

As  stated  in  the  former  chapter,  the  rules  in  the  Texas  system  are 
much  nearer  the  equity  practice  than  the  common  law,  though  they  may 
be  even  more  liberal  than  in  equity.  Each  case  must  be  determined  by 
its  own  facts  upon  the  general  principles  before  stated. 


RULES  AS  TO  VERIFICATION  OP  PLEADING. 

To  verify  a  pleading  is  to  state  in  writing,  signed  by  the  affiant,  and 
under  the  sanction  of  an  oath,  taken  before  some  competent  officer, 
that  the  matters  of  fact  in  the  pleading  are  true.  This  statement  is 
usually  attached  to  the  pleading  and  must  in  all  cases  clearly  identify 
it  or  such  portions  of  it  as  the  affidavit  applies  to.  The  verification  may 
extend  to  the  contents  of  the  whole  instrument  or  only  portions,  and 


RULES   AS   TO   VERIFICATION    OF   PLEADING.  299 

in  each  instance  in  should  clearly  indicate  just  what  part  of  the  plead- 
ing, whether  all  or  less,  is  sworn  to. 

There  is  no  general  rule  or  practice  in  Texas  requiring  verification 
of  all  pleadings.  There  are  numerous  statutory  provisions  on  the  sub- 
ject as  to  paticular  pleadings. 

Almost  all  instances  in  which  the  plaintiff  is  required  to  verify  his 
pleadings  are  cases  in  which  he  seeks  some  interlocutory  order, 
or  mesne  process  interfering  with  the  defendant's  use  or  enjoy- 
ment of  something  or  right  pending  the  litigation ;  such  as  the  issuance 
of  a  writ  of  injunction,  mandamus,  attachment,  or  sequestration,  etc. 

There  are  a  few  instances  in  which  verification  is  required  not  com- 
ing under  this  principle,  as  proceedings  by  quo  warranto,  in  which  the 
public  interest  in  the  subject  matter  is  supposed  to  be  so  great  that 
some  guaranty  of  good  faith  is  usually  demanded  before  the  suit  can 
be  instituted ;  or  suits  on  accounts  in  which  the  affidavit  does  not  affect 
the  sufficiency  of  the  pleading  or  any  action  to  be  taken  before  trial,  but 
relieves  the  plaintiff  from  introducing  evidence  to  support  his  case  un- 
less met  by  a  counter-affidavit  by  the  defendant,  denying  the  justness 
of  the  claim. 

The  requirements  as  to  verification  by  the  defendant  are  based  on 
the  considerations  above  stated  and  some  others.  The  cases  coming 
under  the  principles  above  discussed  are  those  in  which  the  plaintiff 
has  by  some  sworn  pleading  procured  an  order  which  the  de- 
fendant wishes  to  set  aside.  The  law  requires  the  reply  of  the  defendant 
to  be  sworn  to  in  order  to  meet  the  presumption  of  right  arising 
upon  the  sworn  pleading  of  the  plaintiff.  Those  based  on  other  reasons 
relate  to  the  final  trial  of  the  case.  They  affect  principally  the 
burden  of  proof  and  admissibility  of  testimony.  There  are  certain  facts 
which  if  properly  plead  by  the  plaintiff  can  only  be  put  in  issue  by 
the  defendant  by  verified  answer.  This  is  true  of  nearly  all 
the  defensive  matters  enumerated  in  the  statute  as  necessary  to 
be  verified.  The  only  exception  firmly  established  by  the  de- 
cisions is  in  pleading  failure  of  consideration  of  written  contracts, 
regarding  which  it  has  been  held  that  if  a  plea  otherwise 
good  is  interposed,  the  absence  of  verification  must  be  taken  advantage 
of  by  special  exception  or  else  it  is  waived,  and  testimony  may  be  heard 
and  considered  under  it.  The  distinction  made  in  the  decisions  is :  that 
if  the  defense  set  up  is  one,  as  to  which  the  burden  of  proof  under  the 
general  common  law  rules  of  evidence  and  practice  is  upon  the  de- 
fendant, and  if  it  remains  on  him  after  the  sworn  plea  is  filed  under 
the  statute,  the  effect  of  the  requirement  only  goes  to  the  good  faith 
of  the  defense,  hence  the  plaintiff  may  waive  the  protection  against 
fictitious  defenses  provided  by  the  statute,  and  failure  to  object  to  the 
pleading  in  the  manner  pointed  out  by  law  for  making  formal  objec- 
tions, is  such  waiver;  but  where,  under  the  general  rules  of  practice, 


300  GENERAL   PRINCIPLES   OF   PLEADING. 

the  burden  of  proof  is  on  the  defendant,  and  verification  under  the 
statute  throws  this  burden  upon  the  plaintiff,  the  defendant  is  not  per- 
mitted to  do  this,  except  in  strict  compliance  with  the  statute.  The 
distinction  does  not  seem  very  great,  and  that  it  was  ever  drawn  is  to 
be  regretted.  The  practice  should  be  uniform,  and  failure  to  except 
to  the  answer  for  want  of  verification  ought  to  be  either  a  waiver  of 
the  objection  to  the  pleading  in  all  cases  or  not  such  waiver  in  any.109 

A  pleading  does  not  become  evidence  by  being  sworn  to;  the  pres- 
ence or  absence  of  verification  may  affect  its  sufficiency  to  raise  issues 
of  designated  kinds,  but  the  admissibility  of  a  pleading  in  evidence 
is  not  affected  by  its  verification. 

This  subject  will  be  considered  more  fully  in  connection  with  those 
pleadings  which  are  required  to  be  sworn  to. 


Pleas  in  Abatement  Must  be  Verified. 

The  statutes  of  Texas  early  provided:  "That  no  plea  in  abate- 
ment, except  a  plea  to  the  jurisdiction  of  the  court,  or  when  the  truth 
of  the  plea  appears  of  record,  shall  be  received  or  admitted  unless  the 
party  pleading  same,  or  some  other  person  for  him  shall  make  affidavit 
to  the  truth  thereof."110 

This  was  continued  in  the  statutes  until  the  revision  of  1879.  It 
was  omitted  from  that  revision  and  a  number  of  dilatory  pleas  were 
enumerated  therein,  which  were  required  to  be  verified,  but  no  general 
requirement  as  to  all  such  pleas  was  made.  This  is  the  present  condi- 
tion of  the  statute.111 


RULES  AS  TO  CONCISENESS. 

The  rule  on  this  subject  is  stated  by  common  law  authorities  in  the 
formula,  "Surplusage  is  to  be  avoided."  It  is  a  most  salutary  rule  and 
should  be  most  carefully  observed.  In  it  are  condensed  and  expressed 
many  of  the  doctrines  which  have  been  previously  stated.  The  rule  re- 


109  Williams  v.  Bailes,  9  Texas,  62;  May  v.  Pollard,  28  Texas,  077;  Drew  v.  Har- 
rison, 12  Texas,'  279;  Kelley  v.  Kelley,  12  Texas,  452;  Persons  v.  Frost  &  Co.,  25 
Texas  Supp.,  130;  Sessuins  v.  Henry,  38  Texas,  37;  I.  &  G.  N.  R.  R.  Co.  v.  Tisdale, 
74  Texas,  8. 

110  District  Court  Practice,  act  1840,  sec.  31. 

111  Hartley's  Digest,  art.  690;  Rev.  Stats.  1879,  artt.  1265;  Rev.  Stats.  1895,  art. 
1265.     Cases  under  old  statute:      Dallam,  591  and  608;   Cook  v.  Thornhill,   13 
Texas,  297;  Wilson  v.  Adams,  ]5  Texas,  324;  Whitenberg  v.  Newton,  31  Texas, 
475;  Allen  v.  Pannel,  51  Texas,  169;  Taylor  v.  Hall,  20  Texas,  215;  Higgins  v. 
Frederick,   32   Texas,   283;    Bishop   v.   Honey,   34   Texas,  245.     Under   the  new: 
Graham  v.  McCarthy,  69  Texas,  323 ;  Jones  v.  Austin,  6  Texas  Civ.  App.,  505,  26 


PLEADINGS    MUST   BE    LOGICAL.  301 

quiring  that  the  facts  should  be  fully  stated  gives  the  affirmative  view  of 
the  subject  of  pleading,  and  is  a  rule  of  inclusion ;  the  rule  requiring  con- 
ciseness gives  the  negative  view,  and  is  a  rule  of  exclusion.  It  is  a 
violation  of  this  rule  to  include  anything  in  a  pleading  which  is  not 
stated  for  some  definite  legal  purpose.  By  it  the  statement  of  ab- 
stract legal  propositions,  facts  judicially  known,  facts  and  conditions 
which  are  so  common  in  their  nature  as  to  be  legally  presumed,  mat- 
ters more  properly  coming  from  the  other  side,  evidence,  and  all  irrele- 
vant matters,  are  excluded. 

It  not  only  forbids  the  statement  of  all  irrelevant  and  unnecessary 
matters,  but  applies  with  equal  force  to  the  manner  of  stating  facts, 
proper  to  be  alleged,  and  demands  the  selection  of  the  clearest  and 
most  apt  terms  and  the  use  of  the  fewest  words  consistent  with  cer- 
tainty. Some  pleaders  seem  to  imagine  that  by  useless  repetition  and 
long,  meaningless  statements  they  give  great  strength  and  legal  form 
to  their  productions.  Just  the  reverse  is  true,  and  every  pleading  filed 
should  be  a  model  of  concise,  terse,  and  accurate  expression. 

In  the  great  majority  of  cases,  surplusage  is  rather  a  hindrance  and 
#n  embarrassment  than  a  fatal  defect.  The  courts  usually  reject  it 
and  suffer  the  party  to  recover  upon  the  facts  of  his  case  notwithstand- 
ing the  bad  form  of  his  pleadings.  In  cases  in  which  the  errors  are  too 
gross,  the  court  sometimes  requires  a  repleader  and  taxes  the  costs 
against  the  offending  party. 

The  law  writers  mention  another  danger,  although  illustrations  of  it 
are  extremely  rare.  That  is,  stating  the  case  with  too  great  particularity, 
and  so  combining  the  surplusage  with  the  essential  facts  that  they  can 
not  be  separated ;  from  which  it  sometimes  results  the  pleader  finds 
himself  compelled  to  prove  more  than  would  otherwise  have  been  es- 
sential, and  so  incurs  the  danger  of  failure  of  proof  and  also  of  variance. 


PLEADINGS  MUST  BE  LOGICAL. 

One  of  the  two  adjectives  used  in  the  statute  regarding  pleading  is 
"logical."  One  of  the  definitions  given  by  Mr.  Webster  of  logic  is: 
"The  science  of  generalization,  judgment,  classification,  reasoning,  and 
systematic  arrangement/'  A  logical  statement  of  facts  therefore  would 
be  a  statement  in  which  the  facts  had  been  properly  reasoned  on,  judged, 
and  classified,  and  then  set  out  in  systematic  order  and  arrangement. 

All  good  pleading  consists  of  such  statements.  Before  attempting  to 
prepare  any  pleading,  the  attorney  should  thoroughly  familiarize  him- 

S.  \V.,  144;  Mullaly  v.  Lithographing  Co..  29  S.  W..  167;  Tolbcrt  v.  McBride,  75 
Texas,  95,  12  S.  W..  752;  Dignowity  v.  Coleman,  77  Texas,  98.  13  S.  W.,  857; 
Manning  v.  Hunt,  30  Texas,  118;  Halbert  v.  San  Saba  Assn.,  89  Texas,  230,  34  S. 
W.,  C3(i. 


302  GENERAL   PRINCIPLES   OF   PLEADING. 

self  with  the  facts  of  his  case,  consider  them  in  every  aspect,  and  fully 
appreciate  their  legal  significance,  and  adopt  some  rational  basis  for  the 
systematic  presentation  of  them.  The  grouping  of  the  facts  should  be 
made  to  depend  either  upon  their  natural  or  legal  relation  one  to  the 
other,  or  both,  and  they  should  be  stated  with  such  continuity  of  thought 
and  reference  one  to  the  other  that  the  mind  of  the  judge  and  of  the 
adverse  party  and  of  the  jurors  can  readily  grasp  the  controlling  points 
in  the  case  and  understand  readily  the  issues  presented. 

In  the  rules  for  the  government  of  district  and  county  courts,  the 
Supreme  Court  says:  "Facts  are  adequately  represented  by  terms  and 
modes  of  expression  wrought  out  by  long  judicial  experience,  perpet- 
uated in  books  of  forms,  in  law  and  equity,  which,  though  not  authori- 
tatively requisite,  may  generally  be  adopted  as  safe  guides  in  pleading." 

These  established  modes  of  legally  expressing  facts  are  valuable  in 
cases  in  which  they  are  appropriate.  The  pleader  must,  however,  ex- 
ercise wise  discretion,  and  adopt  and  use  only  such  of  them  as  really 
represent  and  express  the  facts  of  his  case,  for  it  is  these  facts,  and 
these  only,  that  ought  to  be  presented  in  every  suit  in 


FAILURE  TO  OBSERVE  THE  RULES  OP  PLEADINGS. 

The  different  rules  of  pleading  are  entitled  to  different  degrees  of 
importance.  Some  are  imperative,  and  some  merely  directory;  and  the 
results  of  the  violation  of  the  same  rule  will  be  different  according  to 
the  manner  and  time  at  which  such  violation  is  called  to  the  attention 
of  the  court. 


Defects  in  Substance. 

The  most  important  of  these  rules  is  the  one  requiring  that  a  plead- 
ing shall  state  fully  the  facts  relied  on.  A  violation  of  this  rule  is  fatal 
when  called  to  the  attention  of  the  court,  no  matter  at  what  stage  of 
the  proceedings,  unless  there  be  something  in  the  record,  proper  to  be 
considered  in  connection  with  the  pleading,  which  will  supply  the 
omission.  By  "the  record"  here  is  meant  all  matters  properly  pre- 
sented to  the  court  before  or  at  the  time  the  judgment  of  the  court  is 
asked  as  to  the  sufficiency  of  the  pleading.  If  the  plaintiff's  petition 
be  bad,  because  of  the  omission  of  some  essential  fact,  and  the  defend- 
ant reply  to  it  by  demurrer  and  denial  only,  the  defect  must  be  fatal, 
whether  urged  by  the  defendant  upon  his  demurrer,  or  upon  a  motion  for 
rehearing  or  arrest  of  judgment,  because  nothing  has  come  into  the  record 
which  can  be  considered  in  connection  with  the  petition  as  supplying  the 


FAILURE  TO  OBSERVE  RULES  OF  PLEADINGS.  303 

omission.  When  the  point  is  urged  after  verdict,  however,  the  distinction 
must  be  kept  in  mind  between  an  imperfect  and  too  general  statement  of 
a  material  fact,  and  the  entire  omission  of  such  fact  from  the  pleading, 
for  the  imperfect  or  too  general  allegation  will  be  cured  by  verdict,  pro- 
vided proof  of  such  fact  would  be  essential  to  sustain  the  finding,  but 
even  a  verdict  can  not  supply  the  entire  absence  of  a  material  averment. 

If,  in  his  answer  to  such  defective  petition,  the  defendant  go  be- 
yond the  negative  pleading  and  suggest  new  matter,  and  in  this  new 
matter  should  aver  the  fact  that  was  omitted  from  the  petition,  the 
authorities  are  not  uniform  as  to  the  effect  of  such  allegation  upon  the 
defendant's  demurrer.  The  case  of  Day  Cattle  Company  v.  State,112 
seems  to  teach  that  if  the  matter  stated  in  the  answer  is  consistent  with 
the  averments  of  the  petition,  the  whole  answer  can  be  considered  upon 
the  demurrer  and  the  petition  will  be  aided  by  the  answer.  It  should 
be  borne  in  mind  that  the  exact  point  regarding  which  the  statement 
was  made  is  a  peculiar  one.  The  defendant  was  insisting  on  a  de- 
murrer because  the  plaintiff's  petition  showed  that  the  claim  set  up 
was  void  and  could  not  be  an  injury  to  the  plaintiff's  right,  and  the 
court  answers  it  by  urging  that  at  the  time  the  court  passed  on  the  de- 
murrer, the  defendant  in  other  portions  of  the  answer  was  asserting 
this  void  title  as  a  basis  of  relief.  On  principle  the  propriety  of  this 
statement  as  a  general  rule,  would  seem  quite  doubtful;  for  as  the 
statute  requires  that  all  matter  of  defense  shall  be  presented  at  the 
same  time  and  in  due  order,  and  as  the  rules  of  pleading  and  practice 
require  that  these  several  defenses  also  be  presented  for  action  in  due 
order,  it  seems  illogical  in  hearing  a  demurrer  to  look  beyond  it  to  the 
matters  of  fact  averred  in  the  answer  which  are  not  then  hefore  the 
court. 

It  has  been  held  that  if  the  allegation  in  the  answer  which  the  plaintiff 
.sought  to  incorporate  into  his  petition,  in  considering  the  demurrers, 
was  inconsistent  with  the  averments  of  the  petition,  such  considera- 
tion would  be  a  contradiction  of  the  petition  rather  than  curing  the 
omission  in  it,  and  that  under  such  circumstances  the  petition  could 
receive  no  aid  from  the  answer  and  the  demurrer  should  be  sustained. 

If  the  omission  in  the  petition  is  not  pointed  out  by  demurrer,  or 
if  pointed  out,  the  demurrer  is  waived  and  the  parties  go  to  trial  upon 
the  merits,  and  all  the  pleadings  are  read  and  the  objection  is  urged 
against  the  admission  of  testimony  offered  by  the  plaintiff,  that  he  has 
no  sufficient  averments  in  his  petition,  it  seems  both  legal  and  logical 
that  the  court  should  look  to  the  entire  record,  and,  if  the  matter  omit- 
ted by  the  plaintiff  was  supplied  by  the  defendant's  answer,  that  this 
would  destroy  the  objection  to  the  testimony;  for  while  it  is  true  that 
the  plaintiff  must  recover  upon  the  case  which  he  has  sued  on,  and  will 

112  63  Texas,  526,  4  S.  W.,  865. 


304  GENERAL   PRINCIPLES   OF   PLEADING. 

not  be  permitted  to  allege  one  cause  of  action  and  recover  upon  another,, 
nor  to  contradict  his  pleading  by  his  proof,  still,  if  the  objection  be  not 
one  of  contradiction  of  his  pleadings,  but  of  absence  of  averment  in 
the  petition,  it  might  well  be  that  the  defendant  would  be  estopped 
from  pleading  surprise  at  proof  of  a  fact  he  had  himself  averred,  or 
lack  of  preparation,  to  sustain  a  theory  of  the  case  presented  by  his 
own  pleadings.  The  case  would  be  even  stronger  if  the  testimony  was- 
received  without  objection  and  verdict  had  been  returned  and  the  point 
was  made  for  the  first  time  on  motion  for  new  trial  or  in  arrest  of  judg- 
ment in  the  trial  court,  or  by  assignment  of  error. 


Defects  in  Form. 

Violations  of  the  other  rules  relate  to  matters  of  form,  for  if  the  pe- 
tition have  in  it  an  intelligent  statement  of  every  fact  essential  to  the 
cause  of  action  or  ground  of  defense,  it  would  be  good  against  a  gen- 
eral demurrer,  no  matter  how  informal  or  objectionable  the  manner  of 
its  statement.  Objections  to  form  must  be  urged  by  special  demurrer, 
and  must  be  called  to  the  attention  of  the  court  at  the  proper  time; 
which  is  after  all  pleas  in  abatement  have  been  disposed  of,  and  be- 
fore the  announcement  of  ready  on  the  facts  of  the  case,  and  according 
to  rules  at  the  first  term  of  the  court  after  filing,  if  there  be  time, 
though  this  is  not  often  insisted  on.  When  this  is  done,  the  particular 
objection  urged  will  be  considered  by  the  court,  and  if  well  taken,  the 
pleading  will  be  held  bad,  and  unless  amended,  so  much  of  it  as  is  subject 
to  the  objection  will  be  stricken  out.  If  this  should  be  some  essential 
part,  and  no  leave  of  the  court  to  amend  were  asked,  judgment  would 
be  rendered  against  the  plaintiff.  If  it  were  not  essential,  and  a  good 
cause  of  action  were  still  alleged,  notwithstanding  the  informal  state- 
ment of  some  particular  matter,  the  case  would  proceed  to  trial  upon 
the  matters  well  plead.  Upon  sustaining  the  demurrer  the  party 
would,  of  course,  have  the  right  to  take  leave  to  amend  and  cure  the  de- 
fects, if  he  so  desired. 

If  no  special  demurrer  is  urged  against  these  formal  defects,  or  if 
objection  is  waived  either  expressly  or  by  failure  to  call  to  the  attention 
of  the  court  at  the  proper  time,  the  right  to  urge  such  defect  is  lost,  and 
no  advantage  of  it  can  be  taken  thereafter.  To  prevent  a  misconception 
of  this  statement,  it  may  be  well  to  say  that  the  decisions  hold  that  the 
affidavit  to  a  plea  of  failure  of  consideration  to  a  written  instrument 
sued  on  is  regarded  as  a  matter  of  form  and  may  be  waived ;  but  that 
affidavit  to  all  other  answers  to  the  merits  required  by  the  statutes  to- 
be  sworn  to  though  not  to  pleas  in  abatement,  are  construed  as  matters 
of  substance,  and  are  not  waived  by  failure  to  call  them  to  the  attention 
of  the  court  by  demurrer. 


PLEADINGS    BY    INTEBVENOKS.  305 


PLEADINGS  BY  INTBRVBNORS. 

Every  intervenor,  as  has  been  seen  in  the  preceding  chapter  on 
"Parties,"  when  he  comes  into  a  case,  must  do  so  because  he  has  some 
right  in  the  subject  matter  of  the  suit  or  the  thing  to  be  effected. 
This  right  must  be  of  such  nature  and  so  connected  with  the  suit  as  to 
entitle  him  to  obtain  some  remedy  in  that  litigation  or  prevent  the 
recovery  of  some  remedy  sought  therein  by  one  or  more  of  the  other 
parties.  In  other  words,  he  must  be  either  an  actor  seeking  relief  or 
a  reus  resisting  relief  sought  by  some  one  else ;  that  is,  he  must,  in  legal 
effect  be  either  a  plaintiff  or  defendant  in  the  action.  The  nature  of 
the  case  and  his  rights  determine  his  position.  Whatever  be  his  posi- 
tion he  must  govern  himself  by  the  rules  of  pleading  applicable  thereto. 
So  far  as  he  seeks  relief  he  must  conform  to  the  rules  governing  the 
pleadings  of  a  plaintiff;  so  far  as  he  resists  some  relief  sought  by 
another  he  must  conform  to  the  rules  governing  defendants.  It  is 
therefore  unnecessary  to  discuss  these  rules  with  special  reference  to 
this  class  of  parties.  All  that  is  required  is  the  intelligent  application 
of  the  rules  of  pleading  as  to  regular  parties. 


306  DIFFERENT    INSTRUMENTS   OF    PLEADING. 


CHAPTER  XII. 

DIFFERENT  INSTRUMENTS  OF  PLEADING  AND  THEIR  RE- 
LATIONS TO  EACH  OTHER. 

In  the  Texas  law  regarding  pleading,  the  terms  petition  and  answer 
are  used  in  a  generic  sense;  the  former  indicating  the  aggregate  of  all 
the  pleadings  by  the  plaintiff,  and  the  latter  the  aggregate  of  all  the 
pleadings  by  the  defendant.  Neither  party  is  limited  to  any  specified 
number  of  instruments  he  may  file  in  the  case,  but  may  file  any  num- 
ber, which  the  exigencies  of  the  case  may  require;  however,  in  fact  the 
pleadings  very  rarely  extend  beyond  two  instruments  on  each  side, 
though  there  is  no  arbitrary  rule  limiting  the  number. 

Each  of  the  pleadings  by  the  plaintiff  bears  the  generic  designation 
"petition,"  preceded  by  one  or  more  adjectives  indicating  its  particular 
nature  and  place  in  the  process  of  pleading.  In  like  manner  each  of 
the  pleadings  by  the  defendant  bears  the  generic  designation  "answer/' 
preceded  by  appropriate  adjective  or  adjectives  specifically  describing 
its  nature  and  position  in  the  case. 

Each  pleading  by  the  respective  parties  filed  after  the  plaintiff's 
original  petition  is  a  reply  to  the  last  preceding  pleading  filed  by  the 
adverse  party,  and  each  should  be  prepared  with  special  reference  to 
this  fact,  and  be  confined  to  matters  responsive  to  such  pleading. 
Matter  properly  belonging  in  one  class  of  pleading  should  not  be  in- 
cluded in  a  pleading  of  a  different  class. 

The  order  of  filing  these  several  instruments  is  as  follows :  The  first 
is  the  plaintiff's  original  petition.  This  should  embrace  every  fact 
essential  to  the  plaintiff's  prima  facie  cause  of  action,  an  appropriate 
prayer  for  relief,  and  the  several  formal  matters  required  by  statute. 
The  plaintiff  can  not  properly  file  a  pleading  of  any  other  class  until 
the  defendant  answers.  If  he  desires  to  change  the  original  petition 
in  any  way  he  may  do  so  by  an  amendment,  but  the  amendment  would 
still  be  of  the  same  class  as  the  original  whose  place  it  took.  The  first 
pleading  filed  by  the  defendant  is  the  defendant's  original  answer. 
This  may  set  out  as  many  different  matters  of  law  and  fact,  whether 
pleas  in  abatement  or  in  bar,  as  may  be  necessary  to  meet  the  case  as 
made  by  the  plaintiff's  original  petition,  and  may  also  contain  new 
matter  in  the  nature  of  a  cross-action  or  reconvention.  All  of  these 
matters  are  embraced  in  the  one  instrument  designated  as  above.  This 
original  answer  of  defendant  constitutes  the  second  pleading  in  the 
case.  It  relates  to,  and  is  intended  to  controvert,  the  plaintiff's  original 


DIFFERENT    INSTRUMENTS    OF   PLEADING.  307 

petition.  If  the  defenses  interposed  in  the  original  answer  are 
negative,  consisting  only  of  demurrers  and  denials,  and  embodying  no 
new  matter,  the  pleadings  close  with  it,  as  there  is  nothing  for  tHe 
plaintiff  to  reply  to.  If,  however,  the  answer  goes  further  and  sets  up 
new  facts,  either  by  way  of  defense  or  as  a  basis  for  affirmative  relief, 
as  in  cross-action  or  reconvention,  the  plaintiff  has  the  privilege  of  re- 
plying to  such  new  matter.  This  he  does  in  the  plaintiff's  first  sup- 
plemental petition.  This  is  the  second  class  of  pleading  by  the  plain- 
tiff. It  is  the  third  pleading  in  the  case,  and  the  first  pleading  desig- 
nated as  a  supplement.  Its  purpose  is  to  reply  to  the  defendant's 
original  answer.  It  may  join  issue  with  the  new  matter  in  such  answer 
by  demurrer  or  by  denials,  and  may  also  set  up  new  matter,  either  in 
confession  and  avoidance  of  the  new  matter  contained  in  the  defend- 
ant's original  answer,  or  may  contain  additional  facts  responsive  to 
such  new  matter,  which  would  entitle  the  plaintiff  to  affirmative  relief. 
If  it  contains  no  new  matter,  the  pleadings  close  here.  If  it  does  con- 
tain new  matter,  then  the  defendant  may  reply  to  it  by  a  pleading 
designated  defendant's  first  supplemental  answer.  The  sole  purpose 
of  this  pleading  is  to  reply  to  the  plaintiff's  first  supplemental  petition. 
If  this  first  supplemental  answer  contains  new  matter,  the  plaintiff 
may  reply  to  it  by  a  pleading  styled  plaintiff's  second  supplemental 
petition,  and  if  this  contains  new  matter,  the  defendant  may  reply  to 
it  by  a  pleading  designated  defendant's  second  supplemental  answer. 
This  process  may  continue  as  long  as  there  is  new  matter  set  up  by 
either  party.  There  is  no  change  of  name  for  these  remaining  plead- 
ings except  in  the  numerals  indicating  them  as  plaintiff's  third  sup- 
plemental petition,  fourth  supplemental  petition,  etc.,  and  defendant's 
third  supplemental  answer,  defendant's  fourth  supplemental  answer, 
and  so  on  indefinitely. 

The  relative  position  and  relations  of  these  pleadings  may  be  bet- 
ter understood  by  an  examination  of  the  following  diagram : 


308  DIFFERENT    INSTRUMENTS    OF    PLEADING. 

GENERIC   DESIGNATION — ANSWER. 


EH 
fc 

P 
!ZJ 
H 
fa 
H 
P 
fa 
O 
GQ 


Q 
0 

H 

CU 


o 


^^ 

03    ,p 


> 

SV     OP 
s 


02 


fl   <M 

^^    O 

|   -P 

_2    <" 

S 1 
II 

p^,  oj 

PH  S 
1=1     ci 


O 

* 
I — I 

P 
< 

H 

^ 
PH 

fe 
O 


C5 

M 

^Hoa 

Sao 

FM  MB 

PH   n 

P^HO 
°CH?1 
p^FM  W 

lSa 

O 


O 
525 


O 

hH 
HH 
O2 


<3 

W 

o 

<! 


fa 
fa 

M 

H 

^ 


OH 

fa 
O 

QQ 

O 

fc 

I-H 
P 
<1 

H 
J 

PM 


Original  Pe 
[All  amendm 


0    g< 
S  OQ 


e 
n 


e 


st  Suppl 
All  amendm 


2d  Supplemen 
[All  amendment 


O 

13 


AMENDMENTS.  309 

It  must  always  be  borne  in  mind  that  each,  of  these  several  instru- 
ments has  its  own  place  in  the  process  of  pleading,  and  stands  in  a 
class  to  itself,  and  that  no  one  can  be  properly  made  to  fill  the  place 
of  another.  To  illustrate :  The  plaintiff  files  his  original  petition  and 
the  defendant  answers  by  demurrer,  and  also  sets  up  new  facts.  If 
the  plaintiff  upon  examination  of  the  question  concludes  that  the  de- 
murrers are  well  taken,  he  should  not  undertake  to  avoid  their  effect 
by  filing  a  first  supplemental  petition  setting  out  facts  which  were 
omitted  in  his  original  petition,  because  the  supplemental  petition 
comes  later  in  the  order  of  pleading  than  the  original  answer  and  its 
purpose  is  to  reply  to  the  facts  set  up  in  the  answer  and  to  join  issue 
upon  them,  and  the  defendant's  answer  could  not  be  used  to  join  issue 
on  it.  The  plaintiff's  remedy  in  such  case  would  be  to  take  leave  to 
file  an  amended  original  petition  and  include  in  it  the  omitted  facts. 
This  would  give  him  a  complete  instrument  of  the  first  class  in  order 
of  the  pleadings  containing  his  entire  prima  facie  cause  of  action,  and 
the  defendant's  answer  would  then  reply  to  it.  The  ground  of  demur- 
rer previously  urged  would,  of  course,  be  gone,  but  other  defenses  of 
the  defendant  would  still  obtain.  If,  however,  instead  of  amending 
the  original  petition  the  plaintiff  undertook  to  cure  its  defects  by 
alleging  the  omitted  matter  in  a  supplemental  petition,  the  court  could 
not  properly  consider  such  matter  in  connection  with  the  original 
petition,  and  would  sustain  tjie  demurrer  to  such  original  petition. 
Besides  this,  the  matter  which  should  have  been  in  the  amended  original 
petition  would  be  out  of  place  in  the  first  supplemental  petition,  and 
would  give  good  cause  to  the  defendant  to  demur  to  it  in  his  first  sup- 
plemental answer. 

It  may  be  stated  as  an  invariable  rule  that  defects  in  a  pleading  of 
any  class  should  be  cured  by  an  amended  pleading  of  that  class,  and 
not  by  a  pleading  of  some  subsequent  class. 

Leave  of  the  court  must  be  gotten  to  file  each  pleading  coming  after 
the  defendant's  original  answer.  This  will  be  given  as  a  matter  of  right 
at  any  time  before  the  parties  announce  ready  for  trial  on  the  merits, 
and  may  in  the  discretion  of  the  court  be  permitted  even  after  such 
announcement. 


AMENDMENTS. 

The  office  of  an  amendment  is  to  cure  some  defect  in  a  pleading  al- 
ready filed.  It  does  not  add  any  new  class.  Every  pleading  in  each 
class  may  be  amended  by  leave  of  the  court.  The  first  amendment  to 
the  original  petition  is  designated  as  plaintiff's  amended  original  pe- 
tition; when  amended  the  second  time  it  is  known  as  plaintiff's  second 
amended  original  petition,  and  so  on,  each  amendment  taking  its  ap- 


310  DIFFERENT    INSTRUMENTS   OF   PLEADING. 

propriate  number.  The  first  amendment  of  the  defendant's  original 
answer  is  designated  defendant's  amended  original  answer,  and  the 
second  as  defendant's  second  amended  original  answer,  as  with  the 
petition.  It  seems  a  little  inapt  to  speak  of  an  instrument  as  an 
amended  original,  but  the  term  original  here  is  used  in  contradistinc- 
tion to  supplemental,  to  indicate  that  the  pleading  to  which  it  is  ap- 
plied belongs  to  the  first  class  of  pleading  filed  by  the  plaintiff  or  the 
defendant,  as  the  case  may  be.  The  first  supplemental  petition  is 
amended  by  filing  plaintiff's  amended  first  supplemental  petition;  it 
is  amended  the  second  time  by  filing  plaintiff's  second  amended  first 
supplemental  petition.  The  words  plaintiff  and  petition  here  indicate 
by  what  party  the  instrument  is  filed.  Its  designation  as  first  supple- 
mental indicates  the  class  of  the  pleading;  and  the  words  second 
amended  indicate  that  it  is  the  third  instrument  of  that  class  filed  by 
the  plaintiff  in  the  case.  If  it  is  the  second  supplemental  petition  that 
is  amended,  the  designation  is  plaintiff's  amended  second  supplemental 
petition.  Here  the  words  plaintiff  and  petition  indicate  by  whom  the 
pleading  is  filed,  and  second  supplemental  shows  the  class  of  the  plead- 
ing, and  amended  shows  that  this  is  the  second  pleading  of  that 
class.  Thus  it  is  seen  each  of  these  terms  has  its  appropriate  signifi- 
cance. The  second  amended  first  supplemental  petition  indicates  a 
different  pleading,  belonging  to  a  different  class,  and  filed  at  a  differ- 
ent stage  of  the  case  from  the  amended  second  supplemental  petition. 
And  so  with  each  designation.  The  same  rules  apply  with  reference  to 
the  defensive  pleadings  and  need  not  be  repeated.  Each  amendment 
of  a  pleading  becomes  a  substitute  for  that  pleading,  and  after  its 
filing  the  pleading  which  it  amends  is  no  longer  considered  as  part  of 
the  record,  except  in  a  few  instances  in  which  some  point  is  made  as 
to  a  ruling  of  the  court  upon  it,  in  which  case  it  is  retained  as  part  of 
the  record  for  the  purpose  of  having  the  ruling  revised  on  appeal  or 
writ  of  error.  The  amendment  should  refer  to  and  identify  the  plead- 
ing for  which  it  is  substituted,  and  should  be  complete  in  itself,  con- 
taining every  matter  which  should  be  in  a  pleading  of  that  class  by 
that  party  in  that  case.  This  is  the  rule  in  all  cases  except  trial 
amendments,  for  which  special  provision  is  made,  as  follows :  If  in  the 
progress  of  the  trial  of  a  case  a  demurrer  to  any  pleading  is  sustained, 
and  there  is  no  opportunity  to  rewrite  the  whole  pleading,  the  court 
can  permit  the  party  to  prepare  an  instrument  known  as  a  trial  amend- 
ment, to  be  used  in  connection  with  the  pleading  amended,  supplying 
its  omissions  as  adjudged  upon  the  demurrers  of  the  adverse  party. 
This  is  only  permitted  if  the  trial  proceeds  at  that  time ;  and  if  the  case 
is  postponed  for  any  reason  the  court  should  require  the  matters  em- 
braced in  the  former  pleading  and  in  the  trial  amendment  to  be  in- 
corporated in  one  pleading. 

Amendments  can  be  made  only  upon  leave  of  the  court,  and  the  tak- 


AMENDMENTS.  311 

ing  of  such  leave  during  term  time,  after  both  parties  are  before  the 
court,  is  regarded  as  sufficient  notice  of  the  filing  of  the  amendment. 
Ordinarily,  the  leave  must  precede  the  filing,  but  under  a  recent  statute 
allowing  amendments  in  vacation,  when  no  leave  of  the  court  can  be 
obtained,  the  instrument  may  be  prepared  and  filed  and  notice  given 
to  the  adverse  party  and  formal  leave  of  the  court  for  the  substitution 
of  the  amendment  for  the  former  pleading,  can  be  had  at  the  opening 
of  the  next  term  of  the  court,  but  the  date  of  the  amendment  for  the 
purpose  of  notice,  etc.,  will  be  counted  from  the  time  that  the  adverse 
party  was  advised  of  its  filing. 

Amendments  Setting  Up  New  Cause  of  Action. 

A  number  of  nice  questions  have  arisen  as  to  what  may  be  set  up 
in  amended  pleadings.  That  is,  how  far  can  the  pleader  depart  from 
the  matter  stated  in  the  former  pleading  and  still  present  the  same 
cause  of  action  or  ground  of  defense;  and  if  the  matters  set  out  in  the 
amendment  should  be  regarded  as  a  new  cause  of  action  or  ground  of 
defense,  what  is  the  effect  of  this  upon  the  rights  of  the  parties  ? 

The  answer  to  these  questions  is  often  difficult,  and  the  cases  are  out 
of  harmony  with  one  another,  and  some  of  them,  it  seems,  contrary  to 
principle. 

There  are  three  propositions  which  may  be  regarded  as  settled. 

First.  A  party  has  the  legal  right  to  amend  his  pleading  at  any 
time  before  announcing  ready  for  trial  on  the  facts,  upon  getting 
leave  of  the  court.  This  is  true,  without  reference  to  the  kind  of  suit.1 

In  some  instances  he  may  do  so  after  such  announcement. 

See  cases  in  second  succeeding  note. 

Second.  He  may  make  any  alterations  in  his  pleading  by  amend- 
ment which  he  desires,  but  must  take  the  legal  consequences  resulting 
therefrom.2 

Third.  The  results  of  the  amendment  upon  his  case  will  depend  on 
the  nature  of  the  amendment  and  the  time  it  is  made. 

We  will  consider  these  propositions  in  their  order.  As  to  the  first,  the 
statute  says: 

"Art.  1188.  All  parties  to  a  suit  may  in  vacation  amend  their  plead- 
ings, may  file  suggestions  of  death  and  make  representative  parties, 
and  make  new  parties,  and  file  such  other  pleas  with  the  clerk  of  the 

-  Cleveland  v.  Tufts,  69  Texas,  580,  7  S.  W.,  72;  Connell  v.  Chandler,  11  Texas, 
249;  Leas  v.  McDonald,  13  Texas,  349;  Dewitt  v.  Jones,  17  Texas,  620;  Shelton 
v.  Berry,  19  Texas,  154;  Hatchett  v.  Conner.  30  Texas,  104;  Boren  v.  Billington, 
82  Texas,  138,  18  S.  W.,  101;  Railway  Co.  v.  Butler,  34  S.  W.,  756. 

2  Beal  v.  Alexander,  6  Texas,  531;  Williams  v.  Randon,  10  Texas,  74;  Hopkins 
v.  Wright,  17  Texas,  30;  McLane  v.  Belvin,  47  Texas,  502;  Weibush  v.  Taylor,  64 
Texas,  53 ;  Woods  v.  Huffman,  64  Texas,  98 ;  Howard  v.  Windom,  86  Texas,  560, 
26  S.  W.,  483. 


312  DIFFERENT    INSTRUMENTS   OF   PLEADING. 

court  in  which  suit  is  pending  as  they  may  desire.  Any  party  may  in 
vacation  intervene  in  any  suit  pending  such  amendments  and  pleas, 
subject  to  be  stricken  out  at  the  next  term  of  the  court  on  motion  of  the 
opposite  party  to  the  suit  for  sufficient  cause  shown  or  existing,  to  be 
determined  by  the  court;  provided,  that  it  shall  be  the  duty  of  the 
party  filing  such  pleading  to  notify  the  opposite  party  or  their  attorneya 
of  the  filing  of  such  papers  within  five  days  from  the  filing  of  the 
same.  All  amendments  to  pleadings,  pleas,  and  pleas  of  intervention, 
must,  when  court  is  in  session,  be  filed  under  leave  of  the  court,  upon 
such  terms  as  the  court  may  prescribe,  before  the  parties  announce 
ready  for  trial,  and  not  thereafter." 

The  latter  part  of  this  statute  would  seem  to  be  mandatory.  It  has 
not  been  so  construed;  on  the  contrary,  there  are  many  cases  in  which, 
after  the  jury  had  been  impaneled,  and  while  the  evidence  was  being 
heard,  amendments  have  been  permitted,  to  avoid  objections  to  testi- 
mony on  the  ground  of  variance.3 

From  these  cases  it  appears  that  the  right  to  amend  is  cut  off  by  the 
announcement  of  ready  on  the  merits,  but  that  the  privilege  is  not, 
and  in  cases  where  the  ends  of  justice  will  be  subserved  by  so  doing, 
the  court  can  still  permit  it  under  such  terms  as  to  costs,  continuances 
by  adverse  party,  etc.,  as  may  be  deemed  just. 

The  second  proposition  only  announces  that  the  party  making  the 
amendment  must  bear  the  legal  consequences,  whatever  they  may  be. 

As  to  the  third,  the  results  of  amendments,  there  is  not  that  harmony 
among  the  cases  that  is  desirable  on  a  matter  of  practice  so  important, 
and  of  such  frequent  occurrence. 

For  purposes  of  determining  their  results,  amendments  may  be 
divided  into  five  classes  which,  retaining  the  usual  phraseology,  are: 
(1)  Those  which  do  not  change  the  cause  of  action  or  ground  of  de- 
fense, and  set  up  no  additional  rights.  ( 2 )  Those  which  leave  the  origi- 
nal cause  of  action  or  ground  of  defense  unchanged,  and  set  out  one  or 
more  additional  ones  pertinent  to  that  formerly  alleged  and  so  con- 
nected with  it  that  they  might  properly  have  been  combined  with  it  in 
the  former  pleading.  (3)  Those  in  which  the  original  cause  of  action 
or  ground  of  defense  is  left  unchanged,  and  which  set  up  one  or  more 
additional  matters  independent  thereof,  and  so  distinct  therefrom  that 
they  could  not  properly  have  been  combined  in  the  former  pleading. 
(4)  Those  which  abandon  the  original  cause  of  action  or  ground  of 

"Whitehead  v.  Foley,  28  Texas,  10;  Hays  v.  Railway  Co.,  46  Texas,  273;  Par- 
ker v.  Spencer,  61  Texas,  155;  Railway  Co.  v.  Goldberg,  68  Texas,  685,  5  S.  W., 
824;  Behan  v.  Ghio,  75  Texas,  88,  12  S.  W.,  996;  Radam  v.  Cap.  M.  D.  Co.,  81 
Texas,  122,  16  S.  W.,  990;  Tel.  Co.  v.  Bowen,  84  Texas,  477,  19  S.  W.,  554.  Cases 
in  which  privilege  was  denied:  Heflin  v.  Burns,  70  Texas,  352,  8  S.  W.,  48;  Harris 
v.  Spence,  70  Texas,  619,  8  S.  W.,  313;  Petty  v.  Lange,  81  Texas,  238,  16  S.  W., 
999;  Batts'  Annotated  Civ.  Stats.,  notes  3874  through  3972. 


AMENDMENTS.  313 

defense,  and  substitute  therefor  one  or  more  others  so  connected  with 
the  former  that  they  might  have  been  properly  combined  in  the  former 
pleading.  (5)  Those  which  abandon  the  original  cause  of  action  or 
ground  of  defense,  and  substitute  therefor  one  or  more  others  so  dis- 
connected from  it  that  they  could  not  have  been  properly  combined 
with  it  in  the  former  pleading.  In  cases  falling  clearly  within  any  one 
of  these  classes  there  is  no  difficulty. 

As  to  cases  falling  in  the  first  class,  as  we  have  seen,  a  party  may 
improve  the  manner  of  stating  his  case  and  amplify  its  facts,  and  make 
a  more  detailed  and  intelligent  presentation  of  it,  subject,  of  course, 
to  the  same  limitations  as  to  detailing  his  evidence  that  obtain  in  the 
presentation  of  the  original  pleading.  No  one  can  be  injured  by  this, 
and  the  practice  should  be  encouraged  in  all  cases  in  which  the  original 
pleadings  are  not  in  best  form. 

Eegarding  cases  in  the  second  class,  there  is  no  difficulty  in  making 
the  amendment  even  though  it  set  up  matters  arising  or  rights  occur- 
ing  since  the  filing  of  the  former  pleading,4  but  as  to  the  additional 
causes  of  action  the  amendment  is  the  beginning  of  a  new  suit,  and  all 
defensive  matters  as  to  these  new  causes  of  action  can  be  availed  of  just 
as  if  the  suit  were  brought  at  the  time  of  filing  the  amendment.  That 
is,  if  there  is  any  matter  in  abatement  of  these  additional  causes  it  may 
be  plead  and  will  not  be  out  of  its  due  order.  Limitation  runs  against 
each  of  such  additional  causes  of  action  up  to  the  time  it  is  plead,  and 
so  through  the  whole  range  of  defenses.5 

In  such  cases,  however,  the  original  cause  of  action  is  not  affected 
by  the  amendment,  and  as  to  that  the  plaintiff's  rights  are  just  a& 
before  the  amendment  was  filed. 

In  cases  in  the  third  class  somewhat  different  rules  obtain.  Here, 
as  in  the  second,  the  filing  of  the  amendment  is  the  beginning  of  the 
suit  as  to  the  new  matters  set  up,  and  the  defendant  may  make  all  hi& 
defenses  as  to  them  as  in  the  second  class ;  but  as  these  and  the  original 
causes  are  not  legally  connected  and  are  improperly  joined,  the  de- 
fendant can  plead  in  abatement  this  misjoinder  and  compel  the  plain- 
tiff to  elect  between  the  original  and  the  new.  If  he  elects  to  retain 
the  original  suit,  the  new  causes  of  action  will  be  stricken  out  at  hi& 
cost  as  to  the  amendment.  If  he  elects  to  retain  the  new  causes  of 
action,  the  original  will  be  stricken  out,  and  all  the  costs  up  to  the  fil- 
ing of  the  amendment  may  be  taxed  against  him,  and  the  case  will 
proceed  as  if  originally  brought  at  the  time  of  filing  the  amendment. 

In  the  fourth  class,  the  plaintiff  has  made  his  election  in  advance 

4  Smith  v.  McGaughey,   13  Texas,  466. 

3  Speake  v.  Prewitt,  6  Texas,  252 ;  Irvine  v.  Bastrop,  32  Texas,  485 ;  Woods  v. 
Huffman,  64  Texas,  98;  E.  L.  &  R.  R.  Ry.  Co.  v.  Scott,  75  Texas,  84,  12  S.  W., 
995;  Howard  v.  Windom,  86  Texas,  560,  26  S.  W.,  483. 


314  DIFFERENT   INSTRUMENTS   OF   PLEADING. 

and  abandoned  his  original  suit.  He  will,  in  the  discretion  of  the 
court,  be  made  to  pay  the  costs  up  to  the  time  of  the  filing  of  the 
amendment,  and  the  suit  will  proceed  on  the  amendment  just  as  a  new 
suit. 

In  the  fifth  class  the  rules  are  the  same  as  in  the  fourth  class,  except 
that  the  costs  will  always  be  taxed  against  the  plaintiff. 

Difficulty  arises  whenever  the  matters  in  the  amendment  are  differ- 
ent from  the  former  pleading  but  are  closely  connected  with  them.  Do 
they  then  present  the  same  cause  of  action  or  a  different  one,  and  if  the 
latter,  in  which  of  the  last  four  classes  does  the  amendment  fall  ?  It  is 
apparent  that  these  questions  can  not  be  answered  intelligently  until 
we  understand  what  is  meant  by  cause  of  action  in  this  connection.  In 
the  older  cases,  the  phrase  was  given  a  strict  construction  with  the 
same  import  that  it  has  in  other  rules  of  pleadings.  Whether  the 
amendment  presented  the  same  or  a  different  cause  of  action  or  ground 
of  defense  from  that  set  up  in  the  original  was  made  to  depend  on  the 
legal  effect  of  the  facts  alleged.  If  the  legal  effect  was  the  same,  they 
were  held  to  be  identical,  but  if  there  was  any  material  difference  in  the 
legal  effect  of  the  facts,  or  if  they  brought  into  operation  different  rules 
of  law,  they  were  held  to  be  different.  The  test  most  frequently  applied 
was  whether  the  two  were  so  closely  connected  that  the  same  evidence 
would  maintain  both  pleadings,  or,  more  properly,  the  suit  in  both  forms, 
if  so  they  were  held  to  be  identical,  if  not,  they  were  regarded  as 
different.  This  is  the  test  applied  in  all  the  cases  until  very  re- 
cently.6 

This  is  certainly  a  satisfactory  test,  whenever  an  affirmative  answer 
may  be  given,  for  if  the  evidence  will  sustain  both  pleadings,  there 
can  be  no  controversy  that  the  issues  presented  by  the  two  are  the 
same.  This  test  has  been  applied  even  when  the  pleader  had  himself 
been  mistaken  as  to  the  legal  effect  of  the  facts,  so  greatly  as  to  desig- 
nate his  suit  as  one  on  contract  when  it  was  on  tort,  or  has  called  it  a 
suit  on  tort  when  it  was  on  contract.  If  he  set  out  his  facts  in  each 
instance  and  they  are  the  same,  the  incorrect  conclusion  of  law  an- 
nounced by  the  pleader  could  not  change  the  legal  import  of  his  facts.7 

But  is  the  test  equally  reliable  in  cases  in  which  the  evidence  ad- 
missible under  the  one  pleading  will  not  sustain  the  suit  as  set  out  in 

6  Amendments  setting  up  new  cause  of  action :  Morrison  v.  Walker,  22  Texas, 
18;  Erskine  v.  Wilson,  27  Texas,  118;  McRee  v.  Brown,  45  Texas,  503;  Holcomb 
v.  Kelly,  57  Texas,  618;  Railway  Co.  v.  Scott,  75  Texas,  84,  12  S.  W.,  995;  Rail- 
way Co.  v.  Pape,  73  Texas,  501,  11  S.  W.,  526.  Amendments  not  setting  up  new 
causes  of  action:  Railway  Co.  v.  Buckalew,  3  Texas  Civ.  App.,  272,  34  S.  W., 
165;  Railway  Co.  v.  Spellman,  34  S.  W.,  298;  Railway  Co.  v.  Wellington,  36  S.  W., 
1114;  Cotter  v.  Parks,  80  Texas,  539,  16  S.  W.,  307;  Landa  v.  Obert,  78  Texas,  46, 
14  S.  W.,  297. 

T  Railway  Co.  v.  Richards,  11  Texas  Civ.  App.,  95,  32  S.  W.,  96. 


AMENDMENTS.  315 

the  other.  Is  this  always  to  be  conclusive  of  the  point  that  the  causes 
of  action  are  different?  In  strict  principle,  it  would  seem  to  be  so, 
but  the  latter  cases  do  not  so  hold.  The  judges  have  not  changed  the 
wording  of  the  rule,  but  have  allowed  themselves  great  latitude  in  ap- 
plying it  and  in  construing  the  pleadings  and  determining  what  the 
cause  of  action  set  out  in  each  is,  and  have,  by  this  process,  avoided 
the  real  effect  and  value  of  the  test.  In  principle,  a  cause  of  action  is 
the  plaintiff's  right,  the  wrongful  acts  or  omissions  by  the  defendant  in 
violation  of  that  right  and  the  injury  to  the  plaintiff  consequent 
thereon.  Each  of  these  elements  is  essential  to  the  cause  of  action,  and, 
strictly  speaking,  no  two  causes  of  action  can  be  identical  in  which 
either  of  these  elements  is  different.  If  the  rights  differ,  the  causes 
of  action  differ ;  if  the  wrongs  differ,  the  causes  of  action  differ ;  and  if 
the  injuries  differ,  the  causes  of  action  differ.  There  seems  to  be 
logically  no  escape  from  these  propositions  and  conclusions,  and  they 
correctly  express  the  theory  and  result  of  the  earlier  cases.  They 
are  apparently  disregarded  in  the  majority  of  cases  which  have  been 
decided  by  the  appellate  courts  in  Texas  in  recent  years.  If  it  be 
conceded  that,  considering  the  facts  of  these  cases,  the  results  reached 
were  proper,  then  it  would  seem  that  the  courts,  instead  of  announc- 
ing the  rule  in  a  set  form  of  words,  and  twisting  its  meaning  to  suit 
cases,  should  reject  the  formula  in  which  the  rule  is  expressed,  go 
back  to  the  principles  on  which  it  •  is  founded,  apply  them  and  an- 
nounce that  the  rule  no  longer  expresses  fully  the  law,  and  will  not  be 
enforced  in  those  cases  which  do  not  come  under  it.  It  would  clear  up 
the  confusion  to  a  large  degree  if  the  courts  would  do  this,  and  change 
the  language  used  to  express  the  law  on  this  subject  so  as  to  make  it 
embody  substantially  the  following  ideas — that  the  amendment  is  to  be 
regarded  a  continuance  of  the  suit  as  originally  brought,  and  not  the 
beginning  of  the  new  one,  in  the  following  cases:  First,  those  in 
which,  strictly  speaking,  the  two  pleadings  set  up  the  same  cause  of 
action,  and  the  amendment  is  a  mere  amplification  or  better  state- 
ment of  the  matter  contained  in  the  original;  and  second,  in  all  cases 
in  which  the  amendment  sets  up  additional  matters  directly  con- 
nected with  or  growing  out  of,  the  previously  pleaded  transaction,  and 
so  germane  thereto  that  they  could  have  been  embraced  with  them  in 
the  first  pleading,  by  use  of  general  terms  descriptive  of  the  cause  of 
action,  and  have  been  good  against  a  general  demurrer,  even  though 
there  should  be  such  difference  in  the  details  of  the  two  pleadings  that 
the  same  evidence  would  not  sustain  both. 

To  illustrate:  In  Aury  v.  Mansur  &  Tibbetts  Implement  Company8 
it  is  held  that  general  allegations  of  fraud,  though  bad  on  special,  are 
good  on  general,  demurrer,  and  that  testimony  can  be  received  under 

8  37   S.  W.,  466. 


316  DIFFERENT    INSTRUMENTS   OF   PLEADING. 

them  to  sustain  the  charge.  If  a  case  were  brought  charging  fraud  in 
general  terms,  there  can  be  no  doubt  that  an  amendment  could  be  made 
specifying  particular  facts  as  constituting  the  fraud,  and  that  this  would 
be  the  same  cause  of  action.  Suppose  afterward  another  amendment  were 
made  setting  up  still  other  facts  concerning  the  same  transaction  con- 
stituting a  distinct  fraud  so  different  from  that  set  up  in  the  first 
amendment  as  not  to  have  been  admissible  under  its  allegations.  Here 
there  would  be  a  different  cause  of  action  in  the  second  amendment 
from  that  set  up  in  the  first,  but  both  would  be  included  in  the  general 
charge  of  fraud,  as  set  out  in  the  original,  and  the  second  amendment 
should  be  permitted  as  a  continuance  of  the  original  suit.  But  if  the 
facts  alleged  in  the  second  amendment  related  to  different  transactions 
although  they  might  be  fraudulent,  or  if  they  related  to  the  same 
transactions  but  had  no  connection  with  fraud,  but  alleged  some  mat- 
ters of  a  different  nature,  the  second  amendment  would  set  up  a  new 
cause  of  action  and  be  regarded  as  equivalent  to  bringing  a  new  suit, 
as  to  such  matters. 

This  is  the  real  result  of  the  recent  decisions,  though  expressed  in 
different  language  from  that  employed  by  the  judges.  Leaving  out 
any  reference  to  the  phrases,  "cause  of  action/'  or  "ground  of  defense," 
we  may  say  that  our  courts  have  held  that  if  the  amendment  sets  up 
facts  regarding  the  same  transactions  as  that  set  up  in  the  original 
pleading,  and  so  germane  to  it  that  it  is  reasonably  apparent  from  the 
pleadings  that  they  refer  to  the  same  matters,  and  that  it  was  the  in- 
tention of  the  pleader  in  preparing  the  former  pleading  to  litigate  the 
matters  set  up  in  the  amendment,  the  amendment  will  be  regarded  as  a 
continuation  of  the  suit,  and  not  the  institution  of  a  new  one.  If  the 
facts  do  not  come  within  this  rule  the  amendment,  as  to  the  new  mat- 
ters, is  the  beginning  of  a  new  suit,  and  all  defenses  to  that  much  of  the 
pleading  are  to  be  tried  and  determined  on  that  basis. 

If  the  defendant  has  answered  in  the  original  suit,  leave  to  file  the 
amendment  during  term  time,  or  the  notice  required  under  the  statute 
as  to  amendments  in  vacation,  is  all  the  notice  of  the  new  cause  of 
action  that  is  required.  If  he  has  not  answered,  he  must  be  cited  as  in 
bringing  a  new  suit.  Just  what  length  of  time  he  has  in  which  to 
answer  this  new  suit  does  not  seem  to  be  certainly  fixed  by  the  statute 
or  rules  of  practice,  but  is  left  largely  to  the  discretion  of  the  court.* 

"Morrison  v.  Walker,  22  Texas,  19;  Weatherford  v.  Van  Alstyne,  22  Texas,  22; 
De  Walt  v.  Snow,  25  Texas,  321;  Erskine  v.  Wilson,  27  Texas,  118. 


AMENDMENTS.  317 

Amendments  of  Verified  Pleadings. 

The  pleadings  by  the  plaintiff  which  are  required  to  be  verified  in 
the  Texas  practice  in  order  to  entitle  him  to  a  trial  upon  the  merits 
and  to  the  relief  which  may  be  properly  awarded  him,  either  at  law  or 
equity,  upon  such  trial  are  very  few.  Verification  of  the  plaintiff's 
pleadings  is  with  few,  if  any,  exceptions,  required  only  as  a  basis  of  some 
relief  pending  the  litigation.  From  this  it  naturally  results  that  the  right 
to  amend  verified  pleadings  must  be  considered  from  two  points  of 
view:  first,  its  effect  upon  the  temporary  relief  obtained  or  desired; 
second,  its  effect  upon  the  permanent  relief  to  be  awarded  upon  the 
final  trial.  It  follows  that  the  rules  with  regard  to  such  amendments 
vary,  according  to  the  nature  of  the  verified  pleading  and  the  pur- 
pose for  which  it  is  filed.  It  is  desirable  to  consider  the  kinds  of  veri- 
fied pleadings  separately  with  the  general  statement;  that  all  such 
amendments  must  be  verified.10 

Attachments. 

There  is  no  requirement  that  the  petition  in  attachment,11  sequestra- 
tion, or  garnishment  suits  should  be  sworn  to.  The  statute  does,  how- 
ever, require  that  neither  of  these  writs  shall  issue  until  a  petition  and 
an  affidavit  embodying  certain  facts,  designated  by  statute,  have  been 
filed.  The  statute  does  not  state  whether  these  shall  be  separate  or  com- 
bined, and  the  practice  with  regard  to  this  varies ;  in  many  instances  the 
facts  required  in  the  affidavit  are  embodied  in  the  petition,  and  the 
petition  sworn  to  and  filed  in  the  case,  thus  making  one  instrument 
answer  a  double  purpose;  first,  as  a  pleading  seeking  temporary  relief 
and  permanent  relief  upon  a  final  hearing;  and  second,  as  an  affidavit 
of  facts  entitling  to  temporary  relief.  In  other  cases,  separate  instru- 
ments are  filed — one  a  petition  and  the  other  an  affidavit.  Both  peti- 
tion and  affidavit,  either  in  the  same  or  separate  instruments,  are  es- 
sential to  the  issuance  and  maintenance  of  the  attachment,  and  it  is 
also  essential  that  these  instruments  be  in  substantial  harmony,  and  a 
variance  in  any  material  respect  between  them  is  fatal  to  the  attach- 
ment. So  it  is  readily  seen  that  abundant  opportunity  for  complication 
exists. 

Let  us  consider,  first,  those  cases  in  which  the  petition  and  affidavit 
are  filed  separately.  No  difficulties  arise  as  to  the  right  to  amend  the 
petition  in  such  cases,  so  long  as  the  amendment  and  the  original  peti- 
tion set  up  the  same  cause  of  action,  and  are  in  substantial  harmony 

*»  Bland  v.  State,  36  S.  W.,  914. 

11  Rev.  Stats.  1895,  title  X;  Primrose  v.  Roden,  14  Texas,  1;  Schrimpf  v.  Mc- 
Ardle,  13  Texas,  368;  Morgan  v.  Johnson,  15  Texas,  569. 


318  DIFFERENT    INSTRUMENTS    OF   PLEADING. 

with  the  affidavit.  In  such  case  the  affidavit  is  the  real  basis  of  the 
attachment,  and  the  petition  is  only  the  pleading  asking  for  the  relief 
appropriate  to  the  facts  as  set  out  in  the  affidavit.  But  when  the 
plaintiff  seeks  to  so  amend  as  to  set  up  a  new  cause  of  action,  different 
principles  apply.  If  he  files  such  an  amendment  and  abandons  his 
original  cause  of  action,  this  would  seem  necessarily  to  be  an  abandon- 
ment of  his  attachment  and  all  the  rights  thereunder.  If  he  amends 
the  petition,  and  sets  up  a  new  cause  of  action  in  addition  to  the  one 
contained  in  the  original  petition,  and  makes  any  material  departure 
with  regard  to  the  latter,  the  attachment  would  still  continue  as  to  the 
original  cause  of  action,  and  any  judgment  that  might  be  obtained  upon 
it  would  entitle  the  plaintiff  to  the  securities  and  priorities  obtained 
by  the  attachment;  as  to  the  new  cause  of  action,  the  lien  would  not 
apply,  and  any  recovery  based  upon  it  would  not  be  entitled  to  any 
benefit  arising  from  the  attachment. 

Considering  next  those  cases  in  which  one  instrument  is  filed  to 
answer  the  double  purpose  of  petition  and  affidavit,  it  would  appear  on 
the  surface,  that  as  an  affidavit  can  not  be  amended  under  any  cir- 
cumstances, the  right  to  amend  in  such  cases  would  not  exist.  Further 
consideration,  however,  will  show  this  position  to  be  untenable.  The 
instrument  filed  in  such  case  has  a  dual  nature.  It  is,  first,  a  pleading, 
and  second,  an  affidavit  of  facts  essential  to  the  procurement  of  the 
attachment.  It  may  be  abandoned  as  a  pleading  and  still  be  retained 
as  an  affidavit,  and  this  is  practically  what  is  done  by  filing  amended 
pleadings  in  such  cases.  While  the  original  would  no  longer  be  on 
record  as  a  pleading,  it  would  stand  after  the  amendment  as  a  separate 
affidavit,  and  so  long  as  the  amended  petition  and  this  affidavit  were 
consistent,  the  same  results  should  follow  as  would  if  the  paper  had 
been  originally  designed  solely  for  use  as  such  affidavit.  So  that  this 
class  of  cases  does  not,  in  reality,  differ  from  the  first.  I  have  not 
found  any  authorities,  in  terms,  recognizing  and  announcing  this 
treatment  of  the  subject,  but  it  is  in  harmony  with  the  decisions,  and 
seems  to  be  the  simplest  view  of  the  subject,  and  correct. 

If  the  doctrines  announced  above  are  true,  the  only  practical  diffi- 
culty in  these  cases  is  in  determining  whether  the  original  cause  of 
action  is  preserved  in  the  amendment  or  the  amendment  sets  up  a  new 
cause  of  action;  and  if  the  second,  then  whether  there  is  any  material 
variance  between  it  and  the  affidavit  supporting  the  attachment.  If  the 
original  cause  of  action  is  preserved  and  there  is  no  material  variance, 
all  rights  under  the  attachment  are  preserved;  if,  however,  the  original 
cause  of  action  is  abandoned  or  there  is  a  material  variance  between  the 
pleading  and  the  affidavit,  the  attachment  is  subject  to  be  quashed,  and 
all  the  benefits  of  it  would  be  lost.  The  rules  for  determining  what  is, 
and  what  is  not,  a  new  cause  of  action  are  the  same  as  those  which  ap- 
ply in  the  ordinary  cases  already  discussed.  Where  the  cause  of  action 


AMENDMENTS.  319 

remains  the  same,  the  rules  for  determining  the  extent  of  modification 
or  variation  permissible  in  the  cause  of  action,  without  defeating  the 
attachment,  seem  to  be  vague  and  undetermined.  On  the  one  hand  it  is 
stated  that  as  these  extraordinary  remedies  are  purely  statutory,  and  in 
derogation  of  common  right,  that  the  statutes  and  all  proceedings  under 
them  must  be  strictly  construed  against  the  plaintiff.  Under  the  in- 
fluence of  this  doctrine,  slight  modifications  of  the  cause  of  action  have 
been  held  fatal  to  the  attachment.  On  the  other  hand,  it  has  been 
held  that  reasonable  construction  should  be  given  to  the  several 
instruments,  that  is,  the  original  petition,  the  amendment,  and  the 
affidavit  upon  which  the  attachment  is  based,  and  if  there  be  such  sub- 
stantial conformity  between  the  affidavit  and  the  original  as  to  har- 
monize these  two,  and  sustain  the  attachment  up  to  the  date  of  the 
amendment,  and  then  such  substantial  conformity  between  the  affi- 
davit and  the  amendment  as  to  sustain  the  attachment  after  that,  the 
writ  will  be  upheld.  The  latter  seems  to  be  the  better  doctrine,  and  the 
trend  of  the  later  opinions  is  in  that  direction. 

It  must  be  borne  in  mind  that  the  affidavit  for  attachment  must  be 
sufficient  in  itself  and  can  never  be  amended;  and  it  is  in  its  capacity 
as  an  affidavit  that  all  right  to  amend  the  original  petition  has  been 
denied  in  some  cases  in  which  the  petition  and  the  affidavit  were  em- 
bodied in  one  instrument. 

There  are  a  number  of  early  cases  which  announce  the  doctrine  that 
petitions  in  attachment  suits  must  be  sworn  to.  This  is  true  in  suits  in 
which  the  petition  and  affidavit  are  combined,  and  there  is  no  other  affi- 
davit in  the  case  upon  which  to  sustain  the  attachment.  Where  there  is 
such  separate  affidavit,  sufficient  in  itself,  there  is  no  requirement 
either  by  statute  or  rules  of  practice  that  the  petition  should  be 
sworn  to. 

There  is  no  class  of  cases  in  which  the  pleader  should  be  more 
careful  and  accurate  than  those  in  which  these  extraordinary  remedies 
of  attachment,  sequestration,  garnishment,  etc.,  are  sought.  These 
writs  are  edged  tools  and  must  be  handled  with  care,  or  they  result  in 
greater  injury  to  the  plaintiff  than  the  defendant.  It  is  a  little  more 
trouble,  but  is  always  preferable,  unless  time  is  too  pressing  to  have  the 
affidavit  and  petition  separate.  This  is  especially  true  in  that  class  of 
cases  in  which  attachments  are  sued  out  before  the  maturity  of  a  debt 
in  whole  or  in  part.  In  such  suits,  amending  the  original  petition  is 
almost  a  necessity,  and  difficulties  will  be  avoided  if  the  petition  be 
kept  separate  from  the  affidavit.12 

"Petition  may  be  amended:  Pearce  v.  Bell,  21  Texas,  688;  Culbertson  v.  Ca- 
been,  29  Texas,  247;  Tarkington  v.  Broussard  &  Co.,  51  Texas,  550;  Marx  v. 
Abramson,  53  Texas,  264;  Evans  &  Martin  v.  Tucker,  59  Texas,  250;  Willis  v. 
Mooring,  63  Texas,  340;  Railway  Co.  v.  Telegraph  Co.,  69  Texas,  282,  6  S.  W., 


320  DIFFERENT    INSTRUMENTS    OF    PLEADING. 

Injunctions. 

It  lias  been  held  that  petitions  for  injunctions  may  be  amended  as 
other  pleadings.13 


Verification  of  Defensive  Pleadings. 

Pleas  in  behalf  of  the  defendant  which  are  required  to  be  verified  may 
be  divided  into  three  classes.  First,  pleas  in  abatement;  second,  pleas 
in  bar  in  reply  to  some  verified  pleading  by  the  plaintiff  seeking  tem- 
porary relief  and  designed  to  prevent  such  relief  pending  the  litiga- 
tion, as  an  answer  to  an  injunction  suit  and  other  similar  pleas;  and 
third,  pleas  setting  up  defenses  which,  under  the  statute,  can  only  be 
interposed  by  answer  under  oath. 

Pleas  in  Abatement. 

Pleas  in  abatement  must  always  be  sworn  to  unless  their  truth  is 
apparent  upon  the  face  of  the  record  in  the  particular  case  in  which 
the  plea  is  filed. 

Pleas  in  abatement  may  be  amended  just  as  unsworn  pleas ;  of  course, 
if  there  be  contradiction  and  misstatements,  special  exception  should 
be  made  to  prevent  prejudice  against  a  party  by  reason  of  the  conflicting 
sworn  statements. 

Due  order  of  pleading  requires  that  pleas  in  abatement  precede  pleas 
in  bar.  It  has,  however,  been  held  that  where  an  answer  is  filed  con- 
tainftig  a  plea  in  abatement  and  an  answer  to  the  merits,  this  reserves 
the  right  to  amend  the  plea  in  abatement  so  interposed  at  any  subse- 
quent time,  and  that  such  amendment  would  not  be  regarded  as  coming 
after  the  plea  to  the  merits  filed  theretofore.  If,  however,  the  answer 
formerly  filed  did  not  contain  any  plea  in  abatement,  none  could  be 
set  up  by  a  subsequent  amendment;  nor  does  filing  a  plea  in  abatement 
of  one  kind,  predicated  upon  one  state  of  facts,  preserve  the  right  by 
amendment  to  plead  other  and  different  matters  in  abatement  at  a  later 
stage  in  the  proceedings.14 

In  each  of  the  other  two  classes  of  defensive  pleadings,  estoppel  and 
confession  and  avoidance,  the  right  to  amend  is  not  affected  by  the  fact 
that  the  particular  plea  is  required  to  be  verified,  as  such  pleadings  are 

563;  Latterloh  v.  Mcllhenny,  74  Texas,  73,  11  S.  W.,  1063;  Avery  v.  Zander,  77 
Texas,  207,  13  S.  W.,  971;  Munzenheimer  v.  Manhattan  Co.,  79  Texas,  318,  15  S. 
W.,  389.  Amendment  of  verified  pleadings:  Lee  v.  Hamilton,  12  Texas,  413; 
Forbes  v.  Davis,  18  Texas,  268;  McDonald  v.  Tinnon,  20  Texas,  245. 

"McDonald  v.  Tinnon,  20  Texas,  245;  Bland  v.  State,  36  S.  W.,  914. 
"Caldwell  v.  Lamkin,  12  Texas  Civ.  App.,  29,  33  S.  W.,  317. 


AMENDMENTS.  321 

never  designed  as  a  basis  for  affirmative  relief,  and  no  change  in  them, 
except  in  very  rare  instances,  could  affect  the  rights  of  the  parties 
pending  the  litigation,  and  no  objection  to  amending  could  be  made  on 
that  account,  and  so  far  as  they  tender  issues  for  final  adjudication,  of 
course,  an  amendment  would  not  be  more  prejudicial  than  in  cases  of 
pleadings  not  required  to  be  verified.15 

It  may,  of  course,  occur  in  some  cases  that  the  nominal  defendant 
may  be  the  real  actor  or  party  seeking  affirmative  relief  in  some  matter 
set  up  by  him  by  way  of  cross-action ;  as  to  such  matters,  while  in  name 
a  defendant,  he  is  really  the  plaintiff,  and  his  rights  and  the  rules  of 
practice  applicable  to  his  cause  of  action  are  the  same  as  in  cases  of 
other  plaintiffs. 


SUPPLEMENTAL  PLEADINGS. 

The  office  of  a  supplemental  pleading,  whether  petition  or  answer, 
is  to  reply  to  the  new  matter  either  in  confession  and  avoidance,  or  in 
estoppel  or  by  cross-action,  contained  in  the  last  preceding  pleading 
by  the  adverse  party.  It  may  meet  this  new  matter  with  either  legal 
or  fact  defenses.  That  is,  it  may  demur  to  this  new  matter  and  take 
the  judgment  of  the  court  as  to  its  legal  sufficiency  as  a  reply  to  the 
pleading  in  response  to  which  it  is  filed,  or  it  may  deny  the  truth  of 
such  new  matter,  in  whole  or  in  part,  or  it  may  confess  and  avoid  it  or 
set  up  matter  in  estoppel  against  it.  In  short,  supplemental  pleadings 
are  the  means  provided  by  law  to  interpose  each  and  every  defense  to 
the  new  matter  set  up  by  the  adverse  party  in  his  pleadings,  except  a 
general  denial  of  the  facts.  This  is  presumed  by  law  in  absence  of  any 
reply.16 

There  is  nothing  peculiar  as  to  the  form  of  these  pleadings.  They 
should,  of  course,  be  entitled  on  the  face  of  the  first  page,  as  of  the 
case  in  which  they  belong;  should  be  properly  indorsed  with  the  style 
and  number  of  the  case  and  the  proper  designation  of  the  instru- 
ment, as  plaintiff's  first  supplemental  petition,  or  defendant's  second 
amended  first  supplemental  answer,  just  as  the  case  may  be.  The  gen- 
eral rules  as  to  preparation  of  original  pleadings,  requiring  fullness, 
conciseness,  etc.,  permitting  separate  counts  or  grouping  of  facts,  etc., 
should  be  followed  so  far  as  applicable.  That  is,  if  the  new  matter 
to  which  the  supplement  replies  is  not  good  in  substance  as  a  response 
to  the  pleading  to  which  it  is  interposed,  the  defect  can  be  reached  by 
general  demurrer ;  but  if  it  is  good  in  substance  but  is  bad  in  form,  this 

15  Baker  v.  Wahrmund,  5  Texas  Civ.  App.,  268,  23  S.  W.,  1023. 

"Rev.  Stats.  1895,  art.  1193. 
21 — Pleading 


322  DIFFERENT   INSTRUMENTS   OF   PLEADING. 

can  only  be  reached  by  a  special  exception.  So,  if  the  new  matter  is 
such  that  if  originally  plead  by  a  plaintiff  the  defendant  would  be 
required  to  answer  it  under  oath,  a  supplement  denying  it  must  be 
verified,  and  so  through  the  whole  process,  for  the  rules  as  to  prepara- 
tion of  original  pleadings  govern  in  the  preparation  of  supplemental 
pleading,  except  in  those  few  particulars  as  to  form,  etc.,  which  in 
their  nature  could  not  be  applied. 


MABGINAL   VENTJE.  323 


CHAPTEE  XHI. 

PLAINTIFFS    ORIGINAL   PETITION. 

The  eight  parts  of  the  plaintiff's  original  petition  are : 

First. — Marginal  venue. 

Second. — Term  of  court. 

Third. — Address. 

Fourth. — Commencement. 

Fifth. — Count  or  statement  of  cause  of  action. 

Sixth. — Prayer  for  relief. 

Seventh. — Signature. 

Eighth. — Indorsement. 

I  have  found  no  authority  making  either  of  the  first  three  manda- 
tory, but  they  are  certainly  in  good  form,  are  according  to  precedent 
and  conducive  to  intelligent  statement,  and  it  is  well,  therefore,  to 
recognize  and  use  them. 

MARGINAL  VENUE. 

The  marginal  venue  is  the  statement  of  the  county  and  State  in 
which  the  suit  is  brought.  It  is  usually  placed  in  the  left  hand  upper 
corner  of  the  first  page  of  the  petition.  This  gives  an  easy  and  ready 
way  to  ascertain  upon  inspection  of  the  pleading  the  venue  of  the 
suit. 


TERM  OP  COURT. 

The  term  of  the  court  is  usually  stated  in  the  upper  right  hand 
corner  of  the  same  page,  just  across  from  the  marginal  venue,  so  that 
the  time  and  place  of  suit  are  both  readily  apparent  at  the  opening  of 
the  petition. 


THE  ADDRESS. 

As  each  original  petition  is  a  request  for  the  exercise  of  the  power 
of  the  government  to  right  the  wrongs  complained  of,  it  is  proper 
that  it  should  be  addressed  to  the  representative  of  government,  who  is 


324  PLAINTIFF'S  ORIGINAL  PETITION. 

intrusted  with  the  exercise  of  this  power.  This  representative,  as  we 
have  seen,  is  the  court  having  jurisdiction  over  the  case  and  not  the 
judge  of  such  court  personally  or  officially ;  hence  it  is  best  in  ordinary 
cases  to  address  the  petition  to  the  proper  court.  In  some  instances 
in  which  the  plaintiff  wishes  an  interlocutory  order  from  the  judge, 
it  may  not  be  specially  objectionable  to  address  the  petition  to  him, 
and  many  good  practitioners  do  so  address  it  in  all  cases;  and  others 
address  the  court  or  the  judge  indifferently.  It  is  not  a  matter  of 
special  moment,  but  the  better  form  is  to  address  the  court. 


COMMENCEMENT. 

The  statute  says  that  the  petition  must  give  the  names  and  resi- 
dences of  all  the  parties  to  the  suit.  Nothing  is  said  as  to  the  place 
in  the  petition  where  this  information  shall  be  given,  but  it  is  logical 
to  advise  the  court  at  the  outset  who  it  is  that  is  complaining  to  it  and 
against  whom  the  complaint  is  made.  This  method  is  also  convenient 
and  sustained  by  the  best  precedents.  It  was  required  at  common 
law  and  in  equity  that  the  full  names  of  the  parties,  Christian  and  sur- 
name, should  be  given,  but  here  this,  while  the  better  form,  is  not  re- 
quired, and  suit  may  be  maintained  for  or  against  a  party  by  the 
initials,  one  or  both,  of  his  Christian  name  followed  by  his  surname. 
The  residence  of  each  of  the  parties  should  also  be  stated  in  this  part  of 
the  pleading.  The  capacity  in  which  the  suit  is  brought  by  the  plaintiff 
and  against  the  defendant  should  also  be  stated.  It  is  always  presumed 
in  the  absence  of  direct  allegation  to  the  contrary,  that  the  parties  to 
the  suit  sue  and  are  sued  in  their  individual  capacities,  and  if  in  any 
given  case,  they,  one  or  both,  are  before  the  court  in  any  other,  this 
must  be  clearly  and  appropriately  set  out.1 


CAUSE  OF  ACTION. 

The  general  principles  governing  this  subject  have  been  given  in 
preceding  chapter  on  General  Principles,  but  an  attempt  at  application 
•will  be  made,  with  the  hope  that  some  assistance  may  be  derived  there- 
from. The  statute  is: 

"The  petition  shall  set  forth  clearly  the  names  of  the  parties  and 
their  residences,  if  known,  with  a  full  and  clear  statement  of  the  cause 
•of  action,  and  such  other  allegations  pertinent  to  the  cause  as  the 
plaintiff  may  deem  necessary  to  sustain  his  suit,  and  without  any  dis- 

11  For  authorities  and  further  statement  of  rules,  see  Chapter  VIII,  on  Parties. 


CAUSE    OF   ACTION.  325 

tinction  between  suits  at  law  and  in  equity,  and  shall  also  state  the 
nature  of  the  relief  which  he  requests  of  the  court."2 

The  adjectives  used  here  as  descriptive  of  the  statement  are  "full" 
and  "clear."  In  the  general  statute  as  to  pleading  heretofore  quoted 
the  expression  is  a  "logical  and  legal  statement."  So,  together,  the 
statutory  requirements  as  to  the  statement  of  the  cause  of  action  are 
that  it  must  be  full,  clear,  logical,  and  legal. 

The  meaning  of  "fact"  must  be  kept  in  mind.  The  term,  in  its 
ordinary  sense,  includes  everything  of  which  existence,  past  or  present, 
may  be  affirmed.  In  regard  to  pleading  its  significance  is,  anything  that 
now  is,  or  has  occurred,  or  been  accomplished,  and  all  conditions,  past 
or  present,  the  existence  or  nonexistence  of  which  may  be  established  by 
testimony  and  decided  without  involving  in  so  doing  the  determina- 
tion of  one  or  more  questions  of  law. 

A  full  statement  is  one  directly  alleging  every  fact  essential  to  the 
cause  of  action,  leaving  nothing  to  be  inferred  or  supplied. 

A  clear  statement  is  one  concisely  and  accurately  expressed  so  that 
it  can  be  readily  and  certainly  understood;  one  free  from  doubt  and 
ambiguity,  not  confused,  nor  verbose,  nor  obscured  by  surplus  matter. 

A  logical  statement  is  one  arranged  in  proper  order  on  a  rational 
basis,  each  part  naturally  and  reasonably  growing  out  of  and  supple- 
menting that  preceding  it,  and  leading  up  to  and  properly  introducing 
that  succeeding  it,  so  that  the  statement  makes  a  thoroughly  connected 
and  perspicuous  whole  through  which  runs  an  unbroken  chain  of  natural 
sequence. 

A  legal  statement  is  one  made  in  conformity  with  the  rules  and 
requirements  of  law. 

The  statement  of  the  cause  of  action  should  have  all  these  char- 
acteristics.3 

Eule  4  of  the  Supreme  Court  for  county  and  district  courts  is: 

"The  plaintiff,  in  the  original  petition,  in  addition  to  the  names  and 
residence  of  the  parties  and  the  relief  sought,  may  state  all  his  facts, 
so  as  to  present  together  different  combinations  of  facts,  amounting 
to  a  cause  or  causes  of  action,  as  has  been  the  usual  practice,  or  he  may 
state  the  cause  or  causes  of  action  in  several  different  counts,  each 
within  itself  presenting  a  combination  of  facts,  specifically  amounting 
to  a  single  cause  of  action,  which,  when  so  drawn,  shall  be  numbered,  so 
that  an  issue  may  be  formed  on  each  one  by  demurrer." 

This  is  an  apt  summary  of  the  statutes  and  decisions  on  the  manner 
of  presenting  the  facts,  and  scarcely  needs  explanation.  There  are 
some  of  the  older  cases  in  which  it  is  said  that  the  "count"  has  no 

'Rev.  Stats.  1895,  art.  1191. 

8  For  further  explanation  of  these  matters  see  Chapter  XI,  on  General  Prin- 
ciples. 


326  PLAINTIFF'S  ORIGINAL  PETITION. 

place  in  our  system.  Technically  this  is  so,  but  the  grouping  to- 
gether of  the  facts  according  to  one  construction  of  the  evidence  or 
theory  of  the  case,  and  making  a  clear  and  logical  presentation  of 
them  in  such  connection  as  to  present  that  theory;  and  then  again 
grouping  them  according  to  other  constructions  or  theories,  and  making 
a  clear  and  logical  presentation  of  them  in  connections  presenting  these 
other  theories  is  certainly  permissible,  and  in  complicated  cases  almost 
indispensable. 

Whether  the  facts  shall  be  given  in  different  groupings  or  not  lies 
largely  in  the  discretion  of  the  pleader,  and  if  his  petition  presents 
his  case  fully  and  accurately  in  its  several  phases  in  the  one  form  or  the 
other  no  objection  as  to  form  can  be  made  to  it. 

If  the  petition  presents  the  case  in  one  phase  only,  then  all  its  parts 
should  be  consistent.  If  there  are  different  combinations  of  fact,  pre- 
senting different  theories  or  phases  of  the  case,  so  much  of  the  plead- 
ing as  is  designed  to  present  each  phase  or  theory  must  be  consistent 
with  itself;  and  this  is  true,  whether  the  pleading  presents  the  case 
by  separate  paragraphs  or  by  more  formal  counts;  but  the  parts  pre- 
senting different  phases  need  not  be  consistent.  That  is:  If  the  case 
has  many  facts  capable  of  several  constructions,  and  leading  to  differ- 
ent legal  results,  so  that  if  the  court  and  jury  should  find  that  certain 
of  these  facts  are  true  and  others  not  true,  the  plaintiff  would  be  en- 
titled to  one  relief;  but  if  they  should  believe  certain  other  portions 
of  the  evidence,  and  disbelieve  others,  then  the  relief  to  which  he 
would  be  entitled  would  be  different ;  it  is  permissible  for  the  pleader  to 
group  the  facts  entitling  him  to  one  relief,  and  state  them  together  in 
a  separate  count,  closing  with  prayer  for  the  relief  appropriate  thereto, 
and  then  to  group  into  another  count  the  facts  which  would  entitle 
him  to  another  relief,  and  close  it  with  a  prayer  for  that  relief,  and 
continue  this  course  until  all  the  different  theories  of  the  case  were 
presented.  This  would  be  the  presentation  of  his  case  by  separate 
counts.  When  this  method  is  adopted  all  the  facts  in  each  count  should 
be  consistent  with  each  other,  and  with  the  relief  prayed  for  in  it. 

The  facts  so  grouped  need  not  be  confined  to  a  single  issue,  as  at  com- 
mon law,  but  may  be  double  or  multiform,  if  they  are  of  the  same  gen- 
eral kind  and  could  exist  together.  If  the  facts  are  inconsistent  and  so 
could  not  all  exist  together,  they  should  not  be  plead  in  one  count,  for 
that  would  make  the  count  destructive  of  itself.  This  rule,  requiring  con- 
sistency, does  not  apply  as  between  the  different  counts,  and  these  may 
be  inconsistent  without  making  the  pleading  bad;  indeed,  the  only 
purpose  of  counts  or  groupings  of  facts  in  our  system  is  to  enable  the 
pleader  to  present  the  different  and  inconsistent  combinations  of  fact 
which,  he  thinks,  may  be  proved  on  the  trial,  and  by  this  method  lay 
a  basis  for  relief,  whichever  view  may  be  taken  of  the  testimony. 

On  the  other  hand,  the  pleader  in  such  a  case  is  not  compelled  to  re- 


CAUSE    OF    ACTION.  327 

sort  to  different  counts,  but  he  may  state  in  different  paragraphs  or 
together  all  the  facts  which  are  common  to  the  several  theories  or 
phases  of  the  case,  and  having  thus  gotten  into  the  record  these  common 
facts,  may,  by  additional  paragraphs,  present  separately  those  sus- 
taining the  different  phases  or  theories  of  the  case.  Thus,  if  there  are 
a  half  dozen  facts  which  are  relied  on  in  all  the  different  theories  these 
could  be  grouped  and  stated  together,  or  in  separate  paragraphs,  num- 
bering them  if  preferred,  and  then  an  additional  paragraph  or  series 
of  paragraphs  could  be  added  referring  to  those  preceding,  and  setting 
out  in  connection  with  them  one  phase  or  theory  of  the  case,  conclud- 
ing in  an  appropriate  manner;  and  then  other  paragraphs  could  be 
added,  referring  back,  and  connecting  with  the  earlier  paragraphs,  which 
are  common  to  all  the  phases  of  the  cases,  which  would  thus  be  made 
a  part  of  this  presentation  also,  and  then  setting  out  the  additional  facts 
necessary  to  the  presentation  of  another  phase  of  the  case,  and  so  on, 
until  all  the  different  theories  were  covered  by  the  petition. 

In  such  case  the  rule  as  to  consistency  is  the  same  as  when  the  plan 
of  presenting  by  counts  is  chosen;  that  is,  all  the  facts  relied  on  to 
present  a  single  phase  or  theory  of  the  case  must  be  consistent  with 
each  other,  but  those  presenting  one  theory  need  not  be  consistent  with 
those  presenting  another. 

We  reach  the  difficult  part  of  the  pleader's  task  at  this  point.  He 
must  state  the  facts  constituting  his  cause  of  action.  This  puts  to  the 
test  his  knowledge  of  substantive  law.  He  can  not  select  the  facts  to 
plead  unless  he  knows  what  facts  give  rise  to,  or  constitute,  a  cause  of 
action.  A  cause  of  action  is  said  to  consist  of  three  elements:  the 
plaintiff's  right;  the  violation  of  this  right  by  defendant;  and  the  legal 
injury  to  plaintiff  by  reason  of  such  violation.  And  ordinarily  a  full 
and  clear  statement  of  a  cause  of  action  must  contain  a  direct  allega- 
tion of  every  fact  going  to  make  up  each  of  these  elements. 

The  first  thing  to  be  seriously  considered  in  this  connection  is  that  it 
is  the  plaintiff's  cause  of  action  which  must  be  plead;  not  a  cause  of 
action  generally,  nor  one  existing  in  behalf  of  some  person  other  than 
the  plaintiff.  It  would  be  wholly  useless  to  state  to  the  court  as  a  basis 
of  relief  for  the  plaintiff  some  right  existing  in  another — it  must  be  his 
right,  in  order  to  entitle  him  to  come  to  the  court  for  relief.  Not 
only  must  this  right  exist  in  him,  but  it  must  exist  in  him  in  the  very 
capacity  in  which  he  sues.  If  a  man  beNthe  executor  of  an  estate,  and 
has  certain  rights  as  such,  he  can  not  sue  individually  and  recover  on 
such  rights;  nor  can  he  sue  as  an  executor  and  recover  on  rights  per- 
sonal to  himself.  This  doctrine  is  carried  so  far  that  even  in  the  case 
of  husband  and  wife,  although  the  husband  may  sue  in  his  own  name 
for  the  wife's  separate  property,  by  making  the  proper  allegations  as 
to  its  ownership  by  the  wife,  he  can  not  sue  thus  in  behalf  of  his  wife, 
make  proper  averments  with  reference  to  the  rights  of  his  wife,  and 


328  PLAINTIFF'S  ORIGINAL  PETITION. 

recover  on  facts  showing  the  property  to  be  either  his  separate  estate 
or  community.  The  variance  between  the  right  claimed  by  him  for 
his  wife  in  the  pleadings,  and  that  proven  in  his  own  or  com- 
munity right  by  the  evidence,  would  be  fatal.4  So  the  first  inquiry  is 
always — in  whose  behalf  does  the  right  exist,  and  then  in  what  capacity 
does  it  exist  in  him? 


Legal  Bights  and  Duties. 

This  is  not  an  appropriate  place  to  attempt  to  discuss  substantive 
law,  yet  some  consideration  of  the  question  of  legal  rights  and  duties 
seems  to  be  indispensible  to  an  intelligent  presentation  of  the  matter  in 
hand. 

A  legal  right  has  been  denned  by  several  authorities  of  repute  as 
the  capacity  existing  in  one  or  more  persons  to  control  by  law  certain 
definite  acts  or  forbearances  oi  another  or  others.  It  is  possible  that 
this  definition  has  hidden  in  it  all  that  constitutes  a  legal  right,  but  it 
is  not  very  readily  apparent.  There  seems  to  be  some  idea  of  privilege 
or  advantage  in  the  thing,  as  to  which  the  right  of  control  over  another 
exists,  which  is  not  clearly  conveyed  by  the  definition  given  above. 

It  therefore  seems  preferable  to  say,  that  a  legal  right  is  some  claim, 
interest,  advantage,  or  privilege  which  one  enjoys  under  the  recogni- 
tion and  sanction  of  the  law,  and  which  is  secured  to  him  by  the  sov- 
ereign by  giving  to  him  capacity  to  control  by  law  the  conduct  of  others 
with  reference  thereto,  or  with  reference  to  the  things  to  which  it  apper- 
tains. 

The  idea  conveyed  by  either  definition  is  sufficiently  accurate  for 
our  present  purpose.  Legal  rights  are  usually  divided  into  personal 
rights  and  property  rights,  or  those  which  one  enjoys  with  reference 
to  himself  and  to  other  persons  in  his  social,  political,  and  religious 
relations,  without  reference  to  specific  things;  and  second,  those  which 
he  enjoys  with  reference  to  some  thing  or  things,  in  or  to  which  he 
has  some  special  claim,  interest,  or  estate. 

As  a  legal  right  involves  the  capacity  to  control  by  law,  its  cor- 
relative legal  duty  involves  subjection  to  control  by  law.  These  terms 
"legal  right"  and  "legal  duty"  are  different  expressions  of  the  same 
idea  looked  at  from  opposite  points  of  view.  If  A  owes  B  one  thou- 
sand dollars,  A  has  a  legal  right  to  demand  payment  of  the  money 
from  B ;  B  owes  the  legal  duty  to  pay  A ;  payment  by  B  discharges  A's 
right  and  B's  duty;  failure  to  pay  by  B  is  a  violation  of  A's  right 
and  a  breach  of  B's  duty. 

*0wen  v.  Tankersley,  12  Texas,  405;  Hatchett  v.  Conner,  30  Texas,  104. 


CAUSE    OF   ACTION.  329 

A  legal  right  existing  in  one  person  and  a  corresponding  legal  duty 
owed  by  another  constitute  a  legal  relation  between  the  persons,  and 
the  recognition  of  this  relation  by  the  law,,  and  providing  a  remedy  in 
behalf  of  the  person  having  the  right  against  the  person  owing  the 
duty,  compelling  the  recognition  of  the  one  and  the  fulfillment  of  the 
other,  constitute  the  legal  obligation  or  tie  between  those  persons. 

The  nature  and  extent  of  these  rights  and  duties  between  the  par- 
ties are  dependent  on  the  conditions  or  states  of  fact  existing  between 
them. 

There  are  three  general  classes  of  these  conditions:  first,  the  ordin- 
ary social  conditions  existing  generally  among  all  persons;  second, 
special  conditions  existing  between  certain  persons,  not  resulting  from 
contract  between  them,  although  in  many  instances  they  grow  out  of 
contracts  between  others;  and  third,  special  conditions  existing  be- 
tween certain  persons  as  the  result  of  contract  between  them. 

In  any  case  submitted,  it  is  necessary  to  understand  in  which  of 
these  classes  the  case  falls  before  the  petition  can  be  properly  prepared. 

The  legal  rights  and  duties  existing  between  parties  in  the  first 
class  are  practically  the  same  between  or  among  all  persons.  They 
grow  out  of  general  social  relations,  and  no  special  conditions  have  to 
be  alleged  or  shown  as  a  basis  for  such  rights  or  duties.  This  is  not 
true  as  to  either  of  the  other  classes.  In  each  of  them  the  rights  and 
duties  grow  out  of  special  conditions  or  states  of  fact,  and  consequently 
they  vary  according  to  the  varying  facts  in  each  different  case.  In  the 
second  class  the  conditions,  though  special,  do  not  depend  upon  any 
contract  entered  into  between  the  persons  whose  rights  are  being  in- 
vestigated, but  the  special  rights  and  duties  are  imposed  by  law  with- 
out the  concurrence  of  the  wills  of  the  parties  affected  thereby.  In 
the  third  class,  these  special  rights  and  duties  grow  out  of  special  con- 
ditions brought  about  by  voluntary  act  of  the  parties  in  entering  into 
the  special  relation  by  contract.  Sometimes,  from  considerations  of 
public  policy,  the  law  determines  what  shall  be  the  respective  rights 
and  duties  between  parties  who  have  by  contract  established  certain 
relations  or  conditions  of  fact  between  them,  and  whenever  any  per- 
sons bring  themselves  into  such  relations  by  agreement,  the  law  fixes 
the  respective  rights  and  duties  between  them  consequent  thereupon,  al- 
though they  may  not  have  been  in  contemplation  of  the  parties  at  the 
time  they  entered  into  the  contract,  and  in  a  few  isolated  cases  even 
though  they  have  been  specially  provided  against  in  the  agreement.  In 
other  cases  the  rights  and  duties  of  the  parties  are  not  imposed  by  law, 
but  are  voluntarily  assumed  by  the  agreement,  and  depend  upon  such 
agreement  for  their  existence.  These  last  are  contract  obligations,  and 
violations  thereof  are  breaches  of  contract;  all  others,  that  is,  all  under 
the  first  class,  all  under  the  second  class,  and  all  under  the  first  sub- 
division of  the  third  class,  are  obligations  imposed  by  law,  and  viola- 


330  PLAINTIFF'S  ORIGINAL  PETITION. 

tions   of   any   of  them   constitute   torts,    as   contradistinguished   from 
breaches  of  contract. 

Under  the  first  class  of  these  rights  and  duties  fall  most  of  those 
rights  usually  known  as  personal;  such  as  the  right  of  life,  bodily 
safety,  freedom  of  person,  of  reputation,  or  religious  liberty,  etc.  In 
the  second  class  of  these  rights  and  duties  fall  such  as  exist  between 
parent  and  child,  as  such;  between  an  officer  and  private  citizen;  and 
between  all  other  persons  sustaining  special  relations  toward  one 
another,  not  growing  directly  out  of  contract  between  them.  This 
second  class  also  embraces  most  property  rights ;  that  is,  rights  in  some 
specific  thing  or  res  which  do  not  grow  out  of  contract  between  the 
persons  between  whom  the  rights  and  duties  exist.  For  illustration, 
A  buys  a  tract  of  land  from  B.  His  right  in  the  land  grows  out  of 
his  contract  with  B,  sanctioned  by  law.  These  rights  as  between  him 
and  B  may,  in  an  imperfect  and  qualified  sense,  be  said  to  be  contract 
rights ;  but  A's  rights  in  the  property  as  against  all  other  persons  except 
B  are  in  no  sense  dependent  upon  contract  between  A  and  them;  but 
certain  conditions  of  fact  exist  which,  sanctioned  by  law,  give  to  A  the 
capacity  to  control  all  other  persons  with  reference  to  that  particular 
tract  of  land.  Therefore,  in  considering  whether  or  not  rights  and 
duties  of  this  sort  exist,  it  is  essential  to  examine  into  the  facts  and 
ascertain  whether  the  special  and  exceptional  conditions  exist  upon 
which  alone  such  rights  can  be  based.  If  these  conditions  do  exist, 
that  much  of  the  case  is  shown ;  if  they  do  not  exist,  it  is  useless  to  pro- 
ceed further  with  the  matter. 

In  the  third  class  fall  all  those  rights  and  duties,  whether  of  per- 
son or  of  property,  which  come  into  being  upon  the  voluntary  assump- 
tion by  contract  of  certain  relations  between  the  parties  between  whom 
the  rights  and  duties  exist,  whether  these  rights  and  duties  are  imposed 
by  law,  without,  or  even  against,  the  assent  of  the  parties,  or  are 
consciously  or  purposely  undertaken  by  them  in  the  contract. 

Not  only  must  the  pleader  ascertain  the  existence  of  the  facts  which 
constitute  the  relations  between  the  parties,  but  if  the  case  falls  within 
either  the  second  or  third  class  above  'mentioned,  that  is,  is  one  in  which 
the  rights  and  duties  of  the  parties  depend  upon  the  existence  of  special 
conditions  or  states  of  fact,  the  facts  constituting  such  special  condi- 
tions must  be  affirmatively  and  directly  alleged  in  the  petition. 

Cases  falling  within  the  first  class,  that  is,  in  which  the  conditions 
are  such  as  generally  and  almost  universally  obtain,  the  facts  show- 
ing the  conditions  out  of  which  the  right  grows  do  not  have  to  be 
alleged  by  specific  and  direct  averment.  To  illustrate :  If  A  complains 
against  B  for  having  made  an  assault  and  battery  upon  him,  it  is  not 
necessary  to  consider  whether  there  was  any  special  relation  existing 
between  the  parties,  because  A  has  a  right  to  personal  immunity,  recog- 
nized by  law,  against  all  persons,  in  the  absence  of  some  exceptional 


CAUSE    OF    ACTION.  331 

conditions  which  would  change  the  rule.  That  is,  A  has  a  legal  right 
to  bodily  safety  as  against  all  persons,  including  B,  and  all  persons,  in- 
cluding B,  owe  A  the  legal  duty  to  refrain  from  injuring  him  by  bat- 
tery, and  A  does  not  have  to  show  that  any  special  relation  existed  be- 
tween him  and  B  as  a  basis  for  B's  liability  for  violation  of  this  duty. 
There  are,  however,  a  few  exceptional  states  of  facts  which  would 
destroy  A's  right  to  immunity,  and  give  B  the  right  to  use  force  upon 
A's  person.  These  being  special  conditions  inuring  to  B's  benefit,  they 
would  be  matters  of  defense  to  be  alleged  by  him  and  would  not  have 
to  be  anticipated  and  negatived  by  A  in  his  petition. 

If,  however,  A  desires  to  sue  B  for  an  assault  and  battery  not  com- 
mitted upon  himself  but  upon  C,  the  minor  child  of  A,  here  the  condi- 
tions are  different,  for  ordinarily  one  person  has  no  right  in  the  per- 
sonal safety  of  a  third  person,  and,  consequently,  no  control  over  the 
conduct  of  another  with  reference  to  such  person,  and  as  a  basis  of  A's 
right  against  B  as  to  the  person  of  C,  A  must  allege  affirmatively  the 
special  conditions  giving  him  such  right,  to  wit,  that  C  is  a  minor  child 
of  A,  to  whose  service  he  is  entitled,  and  for  whose  expenses  he  is 
legally  liable,  and  that  by  reason  of  the  battery  upon  him  by  B,  he, 
A,  has  lost  the  value  of  such  services,  and  it  became  his  duty  to  incur 
and  he  did  incur  the  specified  expenses.  This  is  an  illustration  of  one 
kind  of  cases  falling  within  the  second  class,  for  the  relation  of  parent 
and  child  existing  between  A  and  C  is  not  one  growing  out  of  contract 
between  the  parties,  yet  it  is  a  special  relation  not  existing  among  per- 
sons generally.  An  illustration  of  another  kind  of  cases  falling  with- 
in this  class  is  an  action  of  trespass  to  try  title  to  a  tract  of  land.  A 
buys  a  tract  of  land  from  B,  and  C  unlawfully  enters  upon  it.  A  sues 
C  in  trespass  to  try  title,  and  attempts  to  control  C's  conduct  with 
reference  to  this  tract  of  land.  There  are  no  contract  relations  between 
A  and  C,  but  A  sustains  towards  the  land  upon  which  C  has  entered 
certain  relations  growing  out  of  his  contract  with  B  regarding  it.  This  is 
not  a  right,  existing  in  A  by  reason  of  ordinary  social  conditions,  but 
depends  upon  the  special  facts  vesting  the  title  to  the  land  in  him; 
and  it  is,  therefore,  necessary  in  a  suit  regarding  it  for  him  to  aver  in 
a  legal  way  the  fact  of  his  ownership  of  the  land  as  a  basis  of  his  right 
to  control  (7s  conduct  regarding  it. 

As  an  illustration  of  contract  obligation  in  the  third  class  we  may 
take  the  following:  A  enters  into  contract  with  B,  employing  him  to 
work  for  him  for  a  year  for  certain  compensation.  This  contract  brings 
into  existence  certain  legal  relations  between  A  and  B  as  a  direct  con- 
sequence of  their  voluntary  action.  Under  it  A  has  a  right  to  demand 
of  B  the  services  contemplated,  and  B  owes  A  the  duty  to  perform 
them.  B  has  a  right  to  demand,  and  it  is  A's  duty  to  pay,  the  com- 
pensation contemplated.  Each  right  in  such  case  is  dependent  upon 
the  discharge,  or  the  tender  to  discharge,  its  correlative  duty  by  the 


332  PLAINTIFF'S  ORIGINAL  PETITION. 

other  party.  If  such  contract  is  violated  by  either  party,  as  if  A 
refuses  to  pay  B,  B  would  have  to  show  the  special  conditions  existing 
between  them,  that  is,  first,  the  contract  between  him  and  A,  making 
every  allegation  necessary  to  show  a  legal  obligation  between  them, 
and  second,  that  he  (B)  had  performed  or  tendered  performance  of 
his  part  of  the  undertaking.  This  is  so  because  the  first  is  essential  to 
show  his  right  to  earn  the  money  by  rendering  the  services,  and  the 
second  is  essential  to  show  that  he  has  earned  it  by  compliance  with 
the  duty  resting  upon  him.  A  petition  by  B,  in  a  suit  against  A  for 
his  wages,  must  aver  all  these  facts.  These  legal  relations  between  A 
and  B,  growing  directly  out  of  the  contract,  are  not,  however,  all  of  its 
legal  results,  and  from  it  may  arise  relations  of  the  second  class.  By 
virtue  of  the  agreement  A  has  become  entitled  to  B's  services  during 
the  term  contemplated  by  the  contract.  If,  therefore,  C  should  do 
some  unlawful  act  which  directly  incapacitates  B  from  rendering  the 
services  due  A  under  the  agreement,  such  act  by  C  is  a  violation  of 
A's  legal  rights;  not  because  there  is  any  contract  between  A  and  C, 
but  because,  by  reason  of  the  contract  between  A  and  B,  A  has  certain 
legal  rights  in  B,  and  his  capacity  to  render  the  services  during  the 
time  specified.  In  suit  against  C  for  the  violation  of  the  right,  these 
conditions  being  special,  A  would  have  to  aver  every  fact  constituting 
them;  that  is,  he  must  show  the  contract  of  employment  between  him 
and  B,  and  that  B  was  performing,  or  was  ready  and  willing  to  per- 
form; that  C's  act  was  unlawful,  and  that  it  directly  incapacitated  B 
from  rendering  the  services  which  he  would  otherwise  have  rendered, 
and  that  such  prevention  was  a  legal  injury  to  A.  An  illustration  of 
obligations  growing  out  of  certain  conditions  originating  in  contract, 
but  which  not  only  are  not  dependent  on  the  contract,  but  contrary  to 
the  real  intent  of  the  parties  in  entering  into  it,  is  found  in  some  con- 
tracts for  domestic  shipment  of  freight.  Thus,  A  is  a  common  car- 
rier, and  B  desires  to  ship  freight  over  his  line  of  road  to  some  point 
within  the  State,  B  tenders  the  freight  in  proper  condition  for  shipment, 
and  they  enter  into  an  agreement  by  which  A  undertakes  to  transport 
the  freight  on  terms  contrary  to  the  Texas  statute  governing  such  ship- 
ment. Here  the  parties  by  their  conduct  have  established  certain 
relations  between  them,  and  have  gone  further  and  attempted  to  regu- 
late, by  agreement,  the  legal  rights  and  duties  growing  out  of  such 
relations.  Ordinarily,  persons  may  contract  with  reference  to  their 
own  business  as  they  see  fit,  but  in  this  case  one  of  the  parties  is  a 
common  carrier,  and  as  to  this  class  of  persons  the  State  imposes  limi- 
tations upon  the  right  to  contract,  and  notwithstanding  A  and  B  have 
undertaken  to  modify  by  agreement,  their  rights  and  duties  as  fixed 
by  law,  those  portions  of  the  contract  providing  for  such  modification 
are  void  and  inoperative.  Here,  if  A  did  not  transport  the  freight  ac- 
cording to  the  requirements  of  the  law,  B  could  bring  suit,  plead  the 


CAUSE    OF   ACTION.  333 

fact  that  A  was  a  common  carrier,  and  had  received  the  freight  for 
transportation,  giving  the  facts  showing  that  it  was  domestic  com- 
merce, and  he  could  ignore  those  terms  of  the  contract  which  are  con- 
trary to  the  law,  and  rely  upon  the  rights  and  duties  established  be- 
tween them  by  the  law. 


The  Plaintiff's  Rights  in  Suits  for  Torts. 

A  tort  is  the  breach  of  a  duty  recognized  or  created  by  law,  not  de- 
pendent upon  the  assent  of  the  person  by  whom  it  is  owed,  and  the 
petition  in  every  suit  for  a  breach  of  such  a  duty  must  distinctly  and 
appropriately  aver  every  fact  which  exists  as  a  legal  basis  of  such  duty. 

If  the  case  be  one  falling  in  the  first  class  above  given — when  the 
right  is  dependent  on  general,  and  not  special,  conditions — such  con- 
ditions, as  before  stated,5  are  presumed  to  exist,  and  need  not  be  posi- 
tively averred. 

If  it  fall  within  either  of  the  other  classes,  and  depends  upon  special 
conditions,  these  must  always  be  averred.  If  among  these  conditions 
there  is  a  contract,  either  between  the  parties  to  the  suit,  or  others,  the 
legal  effect  and  consequences  of  which  are  involved  in  the  suit  as  con- 
stituting the  basis  of  the  right  claimed,  the  contract,  or  so  much  of 
it  as  is  the  basis  of  the  right  claimed,  must,  as  a  rule,  be  set  out 
with  sufficient  particularity  to  enable  the  court  to  judge  for  itself  of 
the  rights  of  the  parties  under  it. 

In  cases  in  which  the  right  involved  in  the  suit  does  not  exist  at 
common  law,  but  is  given  by  some  constitutional  or  statutory  provision, 
as  in  suits  brought  on  account  of  injuries  resulting  in  death,  the  pro- 
visions of  the  Constitution  and  statutes  must  be  carefully  studied,  and 
the  petition  must  show  the  existence  of  every  fact  made  essential  to 
the  existence  and  enforcement  of  such  right. 


The  Plaintiff's  Rights  in  Suits  on  Contract. 

There  seems  to  be  some  disagreement  among  the  law  writers  as  to 
the  proper  definition  of  a  contract,  and  I  shall  not  undertake  the 
difficult  task  of  making  a  correct  selection  from  among  the  many  sug- 
gested. The  essentials  of  a  contract  seem  to  be:  first,  competent 
parties  second,  legality  of  purpose;  third,  legal  consideration;  and 
fourth,  actual  meeting  of  the  minds,  including  both  understanding  and 
will.  For  any  agreement  to  be  the  basis  of  a  right  legally  enforcible, 
it  must  possess  all  these  elements;  and  according  to  the  general  rules 

8  Ante,  p.  271. 


334  PLAINTIFF'S  ORIGINAL  PETITION. 

of  pleading,  the  existence  of  each  should  be  made  apparent  in  a  petition 
setting  up  rights  under  an  agreement.  It  must,  however,  be  remem- 
bered that  there  are  several  exceptions  to  these  general  rules,  as  well 
established  and  as  universally  recognized  as  the  rules  themselves. 
Among  these  is  the  one  which  relieves  the  pleader  from  the  necessity 
of  stating  facts  or  conditions  which  in  the  common  experience  of  men 
are  found  almost  always  to  exist,  and  which  puts  on  the  adverse  party 
the  necessity  of  pleading  the  exceptional  conditions,  if  there  are  any, 
in  any  particular  case.  Both  of  the  first  two  elements  of  contract — 
competency  of  parties,  and  legality  of  subject  matter —  come  under 
this  exception.  It  is  so  nearly  always  true  that  parties  to  an  agree- 
ment are  competent,  and  that  the  subject  matter  is  lawful,  that  for 
convenience  of  all  parties  the  plaintiff  is  ordinarily  excused  or  relieved 
from  the  necessity  of  either  pleading  or  proving  these  facts,  but  each 
is  presumed  to  exist  unless  the  defendant  specially  pleads  the  contrary. 

Consideration. 

The  civil  law  knew  nothing  of  consideration  as  recognized  at  com- 
mon law  as  an  element  of  contract,  and  hence  there  were  no  rules  of 
pleading  on  that  subject  in  that  system.6  The  common  law,  on  the 
other  hand,  regarded  the  requirement  of  consideration  as  an  element  of 
all  ordinary  contracts  as  one  of  its  most  valuable  and  cherished  doctrines. 

The  Congress  of  the  Republic  of  Texas  in  1840  having  adopted  the 
Common  Law  of  England  as  the  rule  of  decision  in  all  matters  of  sub- 
stantive law  as  to  which  there  were  no  constitutional  or  statutory  pro- 
visions, and  having  at  the  same  session  refused  to  adopt  the  common 
law  system  of  pleading  and  retained  the  former  civil  law  system,  there 
necessarily  arose  some  confusion  as  to  the  real  rights  of  parties  and 
the  methods  of  practice  in  securing  the  advantages  of  these  rights 
through  the  court.  There  have  been  several  statutes  on  the  subject 
passed  in  the  hope  of  relieving  this  confusion,  and  others  which, 
though  not  directly  on  the  subject,  affected  it  to  a  considerable  extent. 
To  appreciate  these  articles  and  the  present  state  of  the  law  requires 
some  discussion  of  the  rules  of  the  common  law  at  the  time  of  its 
adoption  here. 

The  Common  Law  of  England,  used  in  its  broadest  sense,  as  was 
evidently  the  intent  of  Congress  in  its  adoption,  embraces  the  ancient 
common  law  as  modified  by  later  growths  and  decisions  if  not  by  acts 
of  Parliament.  It  clearly  included  the  rules  and  doctrines  governing 
negotiable  instruments,  designated  as  the  law  merchant,  hence  these 
must  be  taken  into  account  in  dealing  with  the  question.  In  this 

"Las  Partidas,  partida  5,  title  11,  pp.  780-818;  Pollock's  Elements  of  Con- 
tract, 132,  et  seq. 


CAUSE    OF   ACTION.  335 

broadest  sense  the  Common  Law  recognized  two  distinct  classes  of  con- 
tracts : 

1.  Contracts  embraced  in  and  governed  by  the  Law  Merchant  as 
contradistinguished  from  the  Ancient  Common  Law. 

2.  Contracts  embraced  in  and  governed  by  the  Ancient  Common 
Law. 

The  first  class  embraces  all  promissory  notes,  bills  of  exchange,  and 
checks,  which  came  up  to  the  law  merchant  standards.  That  is,  all 
absolute  written  promises  or  orders  by  a  certain  person  to  pay  a  cer- 
tain person  a  certain  sum  of  money  at  a  certain  time.  The  details  as 
to  these  papers  and  their  characteristics  must  be  gotten  from  works  on 
commercial  paper.  It  is  sufficient  here  to  say  that  the  law  merchant, 
which  is  most  probably  an  outgrowth  of  the  civil  law,  knew  nothing 
of  consideration.  The  idea  of  quid  pro  quo  did  not  enter  into  its  con- 
ception of  contract;  what  a  man  promised  another  in  form  of  law  mer- 
chant paper  to  do  he  was  expected  and  required  to  perform,  whether 
the  promise  were  based  on  a  consideration  or  purely  voluntary.  The 
common  law  did  not  recognize  the  enforcibility  of  simple  agreements 
made  without  consideration,  and  such  promise  unsealed,  though  in 
writing,  had  no  validity  according  to  its  teachings.  When  the  mer- 
chants of  Continental  Europe  brought  their  business,  and  their 
customs  and  rules  regarding  it,  into  England,  conflict  between  the 
two  systems  was  inevitable.  The  result  was  a  compromise.  The  law 
merchant  yielded  so  far  as  to  recognize  that  no  promise  unsupported 
by  consideration  could  be  enforced,  and  the  common  law  yielded  so 
far  as  to  permit  the  presumption  that  all  paper  of  the  law  merchant 
was  based  on  valuable  consideration,  and  established  the  rule  that  in 
suing  on  such  paper,  consideration  need  not  be  either  plead  or  proved, 
but  if  in  any  case  there  were  in  fact  no  consideration  supporting  the 
promise  or  undertaking,  the  party  relying  on  this  as  a  defense  should  be 
required  to  plead  and  prove  it. 

This  was  the  law  regarding  such  paper  at  the  time  of  the  adoption,  of 
the  common  law  for  the  government  of  our  substantive  rights,  and 
the  introduction  of  evidence.  This  has  ever  since  been  held  to  be  the 
proper  rule  regarding  such  paper, — promissory  notes,  bills  of  exchange, 
and  checks, —  and  it  is  not  necessary  to  plead  consideration  for  such 
paper,  nor  to  offer  proof  of  it  in  any  case  unless  consideration  is  denied 
under  oath,  and  then,  the  simple  production  of  the  paper  makes  out  a 
prima  facie  case  of  consideration,  and  the  party  setting  up  the  want  or 
failure  must  affirmatively  prove  his  contention.7 

Contracts  of  the  other  class,  that  is,  those  not  coming  within  the 

7  Jones  v.  Holliday,  11  Texas,  414;  Buchanan  v.  Wren,  10  Texas  Civ.  App.,  560, 
30  S.  W.,  1077;  Bigelow  on  Bills  and  Notes,  p.  5;  Daniel  on  Negotiable  Instru- 
ment, sees.  160,  161. 


336  PLAINTIFF'S  ORIGINAL  PETITION. 

rules  of  the  law  merchant,  but  depending  on  and  governed  by  the 
ancient  common  law,  which  class  includes  all  contracts  except  those 
falling  within  the  law  merchant  as  above  stated,  were  by  the  ancient 
common  law  divided  into  two  classes:  first,  contracts  under  seal  called 
"specialty  contracts,"  and  in  which  were  included  all  deeds  and  bonds, 
that  is,  all  sealed  instruments;  and  second,  contracts  not  under  seal 
and  known  under  that  law  as  "parol  contracts,"  which  term  at  that 
time  embraced  all  agreements  enforcible  by  law  whether  written  or 
oral,  which  were  not  under  seal 

Contracts  of  the  first  class,  that  is,  those  under  seal,  imported  con- 
sideration, those  of  the  second,  that  is,  unsealed  contracts  whether 
oral  or  written,  did  not  import  consideration.8 

In  suing  on  sealed  instruments  at  common  law,  it  was  not  necessary 
either  to  allege  or  prove  consideration.  This  was  presumed. 
Whether  this  presumption  was  conclusive  or  merely  prima  facie,  the 
authorities  do  not  seem  to  be  entirely  agreed.  Though  it  seems  that 
the  seal  was  a  substitute  for  consideration  in  the  first  instance,  that  is, 
if  a  promise  were  entirely  without  consideration,  still,  if  it  were  evi- 
denced by  a  sealed  instrument  it  would  be  enforced,  and  the  plea  of 
original  want  of  consideration  was  not  good,  the  form  of  the  contract 
in  such  case  taking  its  place;  but  if  the  parties  had  not  designed  to 
contract  without  consideration,  but  had  in  fact  contracted  on  and 
for  a  consideration  and  had  also  evidenced  the  agreement  by  writing 
under  seal,  and  the  consideration  failed,  then  such  failure  could  by 
proper  pleading  and  proof  be  established  as  a  defense.  This  distinc- 
tion was  made  to  prevent  fraud.  If  one  originally  contracted  not  ex- 
pecting benefit,  the  seal  would  hold  him  conclusively  to  his  agreement. 
But  if  he  contracted  for  some  consideration  of  value,  and  the  other 
party  failed  to  furnish  this  value,  the  seal  would  not  be  made  an  in- 
strument for  working  a  fraud  and  holding  him  to  the  contract.  How- 
ever the  authorities  differ  on  these  points,  some  holding  the  seal  con- 
clusive in  all  instances,  some  holding  it  prima  facie  only  in  all  in- 
stances, and  some  recognizing  the  distinctions  set  out  above  and  hold- 
ing it  conclusive  in  some  and  prima  facie  in  other  cases.  On  the  fol- 
lowing points  they  all  agreed:  1.  That  the  seal  was  at  least  prima 
facie  evidence  of  consideration  in  all  cases,  and  that  in  suing  to  enforce 
a  sealed  contract  the  consideration  need  be  neither  plead  nor  proved. 
2.  That  if  the  defense  of  want  or  failure  of  consideration  was  per- 
missible at  all  against  a  sealed  instrument,  it  could  not  be  availed  of 
unless  it  were  specially  set  up  in  the  defensive  pleadings  and  was 
proved  by  the  party  relying  on  it. 

As  to  the  other  class  of  parol  contracts  of  the  common  law,  that  is, 


8  Pollock  on  Contracts,  132;  Anson  on  Contracts,  59,  63;  Addison  on  Contracts, 
sec.    23. 


CAUSE    OF    ACTION.  337 

all  contracts  not  embraced  in  the  law  merchant  and  not  under  seal, 
whether  in  writing  or  simply  oral,  it  is  universally  held  at  common 
law  that  no  presumption  of  consideration  exists,  and  the  person  seeking 
to  enforce  such  a  contract  or  to  recover  damages  for  its  breach  is  re- 
quired to  both  plead  and  prove  a  valid  consideration  for  the  undertak- 
ing. The  simple  writing  and  signature  unaccompanied  by  a  seal  did 
not  at  common  law  purport  a  consideration.  There  is  no  requirement, 
however,  that  the  pleading  presenting  this  defense  shall  be  sworn  to.9 

For  several  years  after  the  adoption  of  the  common  law,  there  were 
no  statutory  provisions  on  any  of  these  questions.  The  first  statute  af- 
fecting them  was  the  Act  of  April  5,  1846,  which  provided  that  partial 
failure  of  consideration  could  be  set  up  as  a  defense  in  suits  on  written 
instruments.  This  act  does  not  discriminate  between  sealed  and  un- 
sealed instruments,  or  between  paper  of  the  law  merchant  and  of  the 
common  law,  nor  does  it  contain  anything  as  to  the  procedure  in  such 
cases.10  It  seems,  however,  to  have  been  applied  only  to  unsealed  in- 
struments, and  was  held  not  to  require  affidavit  to  the  answer.11 

The  same  session  of  the  Legislature  passed  a  general  practice  act, 
section  52  of  which  is  as  follows:  "In  any  suit  founded  on  any  in- 
strument or  note  in  writing,  under  the  seal  of  the  party  charged  there- 
with, the  defendant  may,  by  special  plea,  impeach  or  inquire  into  the 
consideration  thereof,  in  the  same  manner  as  if  such  writing  had  not 
been  sealed,  but  no  pleas  impeaching  the  consideration  of  any  instru- 
ment or  note  in  writing,  under  seal,  shall  be  admitted,  unless  supported 
by  affidavit  of  the  defendant,  or  some  person  for  him,  stating  that  the 
facts  set  forth  in  said  plea  are  true,  as  far  as  stated  of  his  own  knowl- 
edge, and  that  he  believes  them  to  be  true,  as  far  as  stated,  from  the  in- 
formation of  others."12  This,  it  will  be  seen,  only  reduces  any  sealed  in- 
strument to  the  level  of  the  same  class  of  instruments  had  it  been  un- 
sealed; that  is,  a  sealed  contract  of  the  common  law  would  thereafter 
import  consideration  only  so  far  as  the  same  instrument  would  have 
done  theretofore  without  any  seal ;  a  sealed  contract  of  the  law  mer- 
chant would  thereafter  import  consideration  to  same,  but  only  to  the 
same  extent  as  an  unsealed  contract  of  the  same  sort  had  theretofore 
imported  it.  This  statute  clearly  indicates  that  in  the  judgment  of 
the  Texas  Legislature  consideration  should  thereafter  be  a  necessary 
element  of  sealed  instruments,  and  want  or  failure  of  consideration 
should  have  the  same  effect  as  to  them  as  in  other  written  contracts, 

"Williams  v.  Bailes,  9  Texas,  61. 

10  Acts  of  1840,  p.  40;  Paschal's  Digest,  p.  140;  2  Gammel,  Laws  of  Texas,  1340. 

11  Harris  v.  Cato,  26  Texas,  338. 

'-2  Gammel,  Laws  of  Texas,  1681,  1082;  Paschal's  Digest,  p.  148;  Acts  of 
1846,  375. 

22 — Pleading 


338  PLAINTIFF'S  ORIGINAL  PETITION. 

provided  the  defense  were  interposed  in  the  manner  provided  in  the 
statute.  This  statute  also  dealt  with  the  matter  of  procedure,  and 
required  the  defendant  to  impeach  the  consideration  of  the  instrument 
by  plea  under  oath. 

In  the  case  of  Williams  v.  Bailes,  arising  soon  thereafter  and  before 
any  further  legislation  on  the  subject  had  been  passed,  it  was  held 
that  the  requirement  of  an  affidavit  by  the  defendant  to  such  plea 
against  such  instrument  was  formal,  because  the  plea  did  not  call  for 
any  further  evidence  by  the  plaintiff  in  making  out  his  prima  facie 
case  than  would  have  been  necessary  without  the  plea.  That  is,  that 
the  production  of  the  sealed  paper  made  out  a  prima  facie  case  for  the 
plaintiff  and  the  burden  of  sustaining  his  plea  was  on  the  defendant.13 

In  Jones  v.  Holliday,14  it  was  held  that  in  suits  on  unsealed  written 
contracts  not  of  the  law  merchant  consideration  must  be  plead  and 
proved.  In  this  case  there  was  an  averment  in  general  terms,  of  val- 
uable consideration.  This  was  held  insufficient. 

In  Short  v.  Price,15  the  court  considers  the  effect  of  a  seal  as  evi- 
dence of  consideration,  and  announces  that  unquestionably-  in  actions 
at  law  on  such  instruments  the  seal  imports  consideration,  but  denies 
that  the  doctrine  has  application  in  suits  in  equity  for  specific  per- 
formance or  other  equitable  relief,  and  decides  that  in  such  cases  the 
seal  does  not  make  out  a  prima  facie  case  of  consideration.  In  such 
suits  consideration  must  be  shown  either  by  recital  in  the  paper  or  by 
proof  aliunde. 

The  effect  of  the  statute  would  therefore  seen}. to  be,  first,  to  make 
clear  the  right  of  defendants  sued  upon  sealed  instruments  to  raise 
the  issue  of  want  or  failure  of  consideration  by  sworn  plea  setting  up 
the  facts  in  those  cases  in  which  it  might  have  been  considered  that 
such  defense  was  not  available;  second,  that  in  such  cases  the  defense 
would  be  available  to  same  extent  that  it  would  under  the  circum- 
stances of  the  case  had  the  instrument  not  been  under  seal;. and  third, 
that  the  statute  did  not  aid  persons  relying  on  seals  as  evidence  of 
consideration  in  those  actions  in  which  in  law  or  in  equity  the  seal  had 
not  been  sufficient  theretofore. 

It  must  be  constantly  borne  in  mind  in  considering  this  statute  and 
cases  construing  it  that  by  its  terms  it  is  limited  to  sealed  instruments, 
and  that  the  rules  of  practice  therein  provided  did  not  apply  to  un- 
sealed contracts,  whether  written  or  verbal. 

The  next  statute  affecting  the  question  is  the  Act  of  July  2,  1858, 
doing  away  with  the  necessity  for  scrolls  or  seals  in  private  contracts. 

13  Williams  v.  Bailes,  9  Texas,  63. 
"Jones  v.  Hollirlay,  11  Texas,  413,  18.54. 
"Short  v.  Price,   17  Texas,  399. 


CAUSE    OF   ACTION.  339 

Some  difficulty  was  experienced  as  to  its  exact  meaning  in  regard 
to  attachments  and  similar  bonds,16  and  it  was  amended  so  as  to  avoid 
the  effect  of  some  of  the  previous  cases,17  and  was  put  in  its  present 
form.  It  provides  that  scrolls  or  seals  shall  not  be  necessary  in  execu- 
tion of  any  private  contracts  or  official  bonds,  except  by  corporations, 
and  "that  every  contract  in  writing  thereafter  made  should  be  held  to 
import  a  consideration  as  fully  and  in  the  same  manner  as  sealed  in- 
struments had  theretofore  done." 

No  amendment  of  the  statute  regarding  procedure  was  made  at  the 
time  the  original  statute  abolishing  the  use  of  seals  was  passed,  nor  in 
connection  with  any  of  these  amendments.  Their  effect  upon  the  for- 
mer laws  in  that  regard  was  left  for  the  courts  to  decide. 

In  Wimbish  v.  Holt,18  decided  in  1863,  an  answer  to  a  suit  on  a 
sealed  note  which  imported  consideration  was  filed  without  verification. 
Its  sufficiency  was  questioned.  It  was  held  that  the  Act  of  1858  abol- 
ishing seals  did  not  affect  the  rules  of  practice,  and  that  such  answer 
must  still  be  sworn  to,  notwithstanding  the  fact  that  if  the  note  had 
not  been  sealed  no  verification  would  have  been  necessary. 

In  Life  Insurance  Co.  v.  Davidge,19  decided  in  1879,  though  the 
suit  had  been  brought  and  tried  below  before  the  Kevised  Statutes  of 
1879  went  into  effect,  suit  was  brought  on  a  written  contract  of  insur- 
ance; no  consideration  was  alleged.  The  petition  was  held  bad  on  ac- 
count of  this  omission.  The  court  cited  1  Chitty  on  Pleading,  262; 
Gould  on  Pleading,  section  27;  and  Jones  v.  Holliday,  11  Texas,  414. 
These  authorities  are  directly  in  point  as  to  the  essentials  of  a  declara- 
tion at  common  law  or  a  petition  under  our  practice  prior  to  the  Act 
of  1858,  doing  away  with  the  distinctions  between  sealed  and  unsealed 
instruments.  There  is  no  question  that  under  those  authorities  a 
pleading  based  simply  on  an  unsealed  instrument  was  required  to  al- 
lege consideration  and  the  plaintiff  was  required  to  prove  it.  It  is 
equally  clear  under  them  that  in  pleading  a  sealed  instrument  con- 
sideration need  not  be  alleged,  and  no  proof  of  consideration  was  re- 
quired beyond  the  instrument  itself.  The  opinion  in  the  case  last  cited 
makes  no  reference  to  this  statute  and  its  effect  on  the  practice,  if  any. 
I  have  found  no  other  case  bearing  directly  on  the  subject.  In  the  revis- 
ion of  1879  the  distinction  as  to  the  verification  of  pleas  of  failure  of 
consideration  in  suits  on  different  kinds  of  writings  are  all  abolished, 
and  now  the  same  rules  apply  as  to  sealed  and  unsealed  instruments 
so  far  ^s  verification  is  concerned. 

"  Read  v.  Levy,  30  Texas,  738 ;  Hart  v.  Kanady,  33  Texas,  720 ;  Bernhard  v.  De 
Forrest  &  Co.,  36  Texas,  518;  Clayton  v.  Mooring,  42  Texas,  182. 

17  Acts  of  1893,  p.  51;  Rev.  Stats.  1895,  arts.  4862,  4863. 

18  Wimbish  v.  Holt,  26  Texas,  674. 

10  Life  Insurance  Co.  v.  Davidge,  51  Texas.  249. 


340  PLAINTIFF'S  ORIGINAL  PETITION. 

It  seems  that  we  ought  to  be  sufficiently  advanced  to  disregard  rules 
of  procedure  which  are  based  on  the  presence  or  absence  of  a  scroll  or 
seal,  and  to  put  all  written  instruments  on  the  same  basis  so  that  a 
uniform  practice  may  obtain,  by  which  paper  of  the  law  merchant  and 
sealed  and  unsealed  written  contracts  of  the  common  law  should  be 
alike  entitled  to  presumption  of  consideration,  and  under  which  the 
plaintiff  shall  be  relieved  from  alleging  and  proving  consideration  in 
suits  on  all  written  instruments,  and  the  burden  shall  be  on  the  de- 
fendant to  plead  and  prove  that  the  contract  signed  by  him  or  his 
authority  was  without  consideration. 

Under  the  present  state  of  the  law,  however,  it  is  safer  to  allege 
consideration  in  all  suits  on  all  common  law  contracts,  and  to  prove  it, 
at  least  by  the  paper  sued  on  if  it  recites  consideration,  or  by  parol  tes- 
timony if  it  does  not. 

Consideration  must  always  be  alleged  and  proved  in  oral  contracts. 

Recapitulating,  the  result  of  the  decisions  seems  to  be: 

First.  In  suits  on  law  merchant  contracts,  it  is  not  necessary  to 
plead  consideration,  nor  to  prove  it  unless  the  defendant  denies  it, 
which  denial  should  be  under  oath,  but  failure  to  except  to  the  answer 
on  that  ground  will  be  a  waiver  of  the  verification  and  testimony  can 
be  heard  and  considered  under  the  unverified  plea.  Even  against  a 
verified  plea  of  failure  or  want  of  consideration  the  paper  itself  makes 
out  a  prima  facie  case  for  the  plaintiff,  and  the  defendant  must  prove 
his  plea. 

Second.  If  the  paper  is  common  law  contract  under  seal,  considera- 
tion need  not  be  plead,  and  the  paper  itself  imports  consideration,  and 
no  further  proof  need  be  offered  by  the  plaintiff.  If  the  defendant 
pleads  failure  or  want  of  consideration  in  such  case,  the  burden  of 
sustaining  his  plea  by  proof  is  on  him.  The  doctrine  as  to  verification 
and  its  absence,  announced  above,  applies  here. 

Third.  If  the  paper  is  common  law  contract  not  under  seal,  the 
statute  says  it  shall  import  consideration  just  as  if  it  were  sealed,  but 
the  decisions  have  not  recognized  this  rale,  and  according  to  them  it  is 
still  necessary  for  the  plaintiff  to  aver  and  prove  consideration  for 
the  written  agreement.  If  the  paper  recites  a  consideration,  it  will 
make  out  a  prima  facie  case  in  its  own  behalf ;  if  it  does  not,  the  plain- 
tiff must  offer  testimony  aliunde  in  support  of  his  case. 

Fourth.  If  the  contract  is  verbal,  the  plaintiff  must  always  plead 
and  prove  the  consideration,  or  he  will  fail  in  his  case. 

Whenever  it  is  necessary  to  plead  consideration  it  must  be  done  with 
reasonable  certainty  and  according  to  the  facts. 

Mutual  Assent. 

The  fourth  element  of  contract — mutual  assent — must  always  be 
plead.  It  is  involved  in  the  general  idea  of  contract,  and  is  ordi- 


CAUSE    OF    ACTION.  341 

narily  covered  by  the  terms  agreed,  mutually  promised,  etc.,  but  it  must 
appear  in  some  form  of  direct  averment. 

These  are  the  rules  governing  the  ordinary  essentials  of  a  contract. 

If  the  agreement  be  such  an  one  as  at  common  law  could  only  be  en- 
forced if  in  writing,  then  it  must  be  alleged  to  be  in  writing.  If,  how- 
ever, at  common  law  the  contract  would  have  been  good  without  being 
in  writing,  as  is  the  case  in  all  contracts  now  covered  by  the  statutes  of 
frauds,  then  the  fact  of  its  being  written  need  not  be  averred  notwith- 
standing the  statute  now  requires  it  to  be  in  writing.  This  is  a  distinc- 
tion which  has  long  outlived  its  usefulness  and  should  be  abolished, 
but  it  has  not  been,  and  so  the  pleader  must  consult  either  the  ancient 
common  law  or  the  precedents,  or  both,  and  govern  himself  accord- 
ingly.20 

In  addition  to  the  existence  of  the  contract,  such  matters  of  description 
as  will  reasonably  serve  to  identify  it  must  be  plead.  These  usually 
consist  in  the  date,  parties,  place  of  making,  and  substance  of  the  con- 
tents. So  much  of  the  contract  as  is  the  basis  of  the  right  claimed 
must  be  plead.  This  may  be  by  appropriate  statements  as  to  its  legal 
tenor  and  effect,  or  by  copying  the  instrument,  or  those  parts  involved 
in  the  litigation.  If  it  appears  from  the  contract  that  there  are  duties 
resting  on  the  plaintiff,  to  be  performed  prior  to  or  concurrently  with 
the  defendant's  obligation,  then  performance,  or  tender  of  performance, 
must  be  averred,  for  the  plaintiff's  petition  must  show  every  fact  es- 
sential to  the  existence  of  a  complete  right  in  him.21 

When  it  is  stated  that  all  these  several  matters  must  appear  affirma- 
tively and  distinctly  in  the  petition,  it  is  not  meant  that  there  must  be 
a  separate  paragraph  or  even  sentence  for  each,  but  only  that  every  one 
of  the  facts  must  be  contained  in  the  pleading.  The  same  statement 
may  sometimes  cover  several  points;  as  in  a  suit  on  a  note,  the  allega- 
tion of  its  date,  amount,  the  names  of  payee  and  pay  or,  date  of  ma- 
turity, etc.,  will  all  be  considered  both  as  matter  of  description  in  de- 
termining the  identity  of  the  paper,  and  as  statements  of  its  legal  effect 
and  substance.  The  same  is  true  in  a  great  many  other  instances 
that  need  not  be  given. 

Legal  right  and  duty  being  correlative  terms,  the  statement  of  the 
legal  right  of  the  plaintiff  necessarily  involves  the  statement  of  the 
legal  duty  of  the  defendant. 


21  James  v.  Fulcrod,  5  Texas,  512;  Brock  v.  Jones,  8  Texas,  78;  Adkins  v.  Wat- 
son, 12  Texas,  201;  Doggett  v.  Patterson,  18  Texas,  162;  Miller  v.  Dawson,  20 
Texas,  174;  Cross  v.  Everts,  28  Texas,  524;  Lewis  v.  Alexander,  51  T«xas,  578; 
Gonzales  v.  Chartier,  63  Texas,  36;  Robb  v.  Railway  Co.,  82  Texas,  392,  18  S. 
W.,  707;  Day  v.  Dalziel,  32  S.  W.,  377. 

21  See  note,  p.  286. 


342  PLAINTIFF'S  ORIGINAL  PETITION. 

Wrong  by  Defendant. 

The  petition  is  not  complete,  though,  upon  the  statement  of  this 
right  and  duty,  however  full  and  formal  it  may  be,  but  must  go  further 
and  show  the  second  element  of  the  cause  of  action,  the  violation  of 
this  right  and  the  breach  of  this  duty  by  the  defendant. 

Sometimes  this  violation  is  affirmative  and  active  in  its  nature; 
consisting  in  some  wrongful  act  or  acts  done  or  threatened  to  be  done; 
sometimes  it  is  negative  and  passive,  consisting  of  an  omission  or  fail- 
ure to  do  some  acts  which  it  is  the  legal  duty  of  the  defendant  to  do. 
Whatever  be  the  nature  of  the  violation,  it  must  be  distinctly  and  spe- 
cifically averred,  not  giving  the  evidence  in  detail,  but  stating  the  facts 
regarding  it  as  that  term  has  been  attempted  to  be  explained. 

Legal  Wrong. 

This  violation,  whether  active  or  passive,  always  consists  either  of 
some  unlawful  act  or  omission,  or  some  act  or  omission,  lawful  in  itself, 
but  performed  or  permitted  in  an  unlawful  manner,  or  in  a  few  excep- 
tional cases,  not  very  satisfactorily  indicated  or  explained  in  the 
works  on  substantive  law,  of  a  legal  act  done  or  omission  permitted  in  a 
lawful  manner,  but  with  an  unlawful  intent. 

The  rules  of  pleading  require  that  the  facts  constituting  this  wrong 
should  be  distinctly  alleged.  The  allegation  must,  of  course,  be  ac- 
cording to  the  case,  and  must  show  a  violation  of  the  legal  obligation 
existing  between  the  parties.  If  a  right  be  of  one  kind,  and  the  wrong 
complained  of  be  of  another,  this  will  not  be  good.  The  particularity  of 
statement  necessary  is  regulated  in  a  large  degree  by  the  character  of  the 
duty  violated. 

If  A  is  a  common  carrier  of  passengers,  as  a  railroad  company,  and 
B  procures  a  ticket  and  lawfully  takes  passage  on  one  of  its  cars,  the  re- 
•  lations  between  the  parties  are  those  of  common  carrier  and  passenger, 
and  the  law  holds  the  company  to  the  highest  practicable  degree  of  care 
to  prevent  injury  to  B.  On  the  same  train  will  be  -others  in  the  employ 
of  the  company,  performing  the  various  duties  as  members  of  the  train 
crew.  The  relations  between  them  and  the  company  are  those  exist- 
ing between  this  particular  class  of  masters  and  servants,  and  a  dif- 
ferent and  much  less  degree  of  care  is  required  by  law  of  the  company 
in  behalf  of  the  employe  than  of  the  passenger.  A  wreck  occurs  dur- 
ing the  trip  and  a  passenger  and  an  employe  are  each  injured.  In  de- 
termining their  respective  rights  against  the  company,  and  its  liability 
to  each,  different  rules  of  law  would  be  involved,  and  the  company 
might  very  readily  be  shown  to  be  liable  to  the  passenger,  when  no  lia- 
bility would  exist  as  to  the  servant.  In  bringing  suit  for  the  passenger, 
it  would  be  necessary  to  allege  facts  showing  only  such  negligence  as 


CAUSE    OF    ACTION.  343 

would  be  a  violation  of  the  high  degree  of  care  due  to  him,  while  in 
suing  for  the  employe,  the  facts  must  show  an  absence  of  ordinary 
care  in  the  discharge  of  the  master's  duty.  And  so  in  all  cases,  the 
facts  alleged  must  show  breach  of  the  very  legal  duty  shown  by  the 
petition  to  have  been  owed  b}r  the  defendant  to  the  plaintiff. 

In  all  cases  in  which  the  act  or  omission  is  in  itself  unlawful  this 
must  be  made  to  appear.  In  those  in  which  the  act  or  omission  is  law- 
ful in  itself,  but  the  manner  of.  doing,  or  failing  to  do,  was  unlawful, 
this  must  be  shown;  and  when  the  gist  of  the  wrong  is  the  improper 
motive,  this  must  be  shown.  Inmost  cases  of  tort,  if  the  wrong  is  done 
maliciously,  that  is,  with  an  affirmative  evil  intent,  or  intentionally 
and  with  such  reckless  disregard  of  consequences  as  to  be  equivalent 
to  a  specific  evil  intent,  exemplary  damages  may  be  recovered  in  ad- 
dition to  the  compensatory  or  actual  damages.  In  all  such  cases,  to 
entitle  to  the  exemplary  damage,  the  evil  motive,  or  recklessness,  or 
wantonness  must  be  alleged ;  and  this  is  so,  even  in  those  cases  in  which 
the  intent  has  nothing  to  do  with  compensatory  damages.  The  particu- 
larity with  which  certain  wrongs,  as  fraud,  negligence,  etc.,  must  be 
alleged,  have  been  already  discussed.22 

Act  or  Omission  by  the  Defendant. 

A  right  in  the  plaintiff  and  violation  of  such  right,  do  not  of  them- 
selves entitle  the  plaintiff  to  sue  the  defendant.  It  must  be  a  violation 
by  the  defendant,  or  under  such  circumstances  that  the  law  holds  him 
responsible  therefor.  This  may  occur  in  a  great  many  ways,  and  pre- 
sents a  great  many  questions  both  of  law  and  of  fact.  These  may  be 
classed  under  two  general  groups  or  heads :  first,  facts  and  law  regard- 
ing the  status  of  the  party  complained  against;  and  second,  facts  and 
law  involved  in  responsible  causation. 

Legal  Status  of  the  Defendant. 

Considering  these  in  their  order,  we  find  that  there  are  some  persons 
who  are  absolutely,  and  some  who  are  partially,  exempt  from  suit,  no 
matter  how  damaging  their  conduct  may  have  been.  These  have  been 
considered  in  the  chapter  on  Parties  and  need  not  be  more  than 
enumerated  here.  Those  absolutely  exempt  are  the  direct  representa- 
tives of  the  sovereign,  namely  the  Federal  government,  the  State,  and 
natural  persons  acting  strictly  as  representatives  of  the  sovereign  in 
some  official  capacity  involving  discretion.  Those  exempt  in  some 
cases  and  liable  in  others  are  smaller  political  corporations  and  persons 
under  legal  disability  either  of  law  or  fact,  such  as  minors,  married 

32  See  chapter  on  General  Principles. 


344  PLAINTIFF'S  OKIGINAL  PETITION. 

women,  insane  persons,  persons  under  duress,  etc.  Different  rules  ap- 
ply in  determining  the  immunity  from,  or  liability  to,  suit  by  these 
several  parties,  according  to  the  character  of  the  case  and  the  nature 
of  the  disability.  In  case  of  the  political  corporations  immunity  from 
suit  is  greater  in  cases  of  tort  than  breach  of  contract.  On  the  other 
hand,  in  case  of  persons  under  disability  the  immunity  is  greater  in 
breach  of  contract  than  in  tort;  the  reasons  being  in  the  last  case  that 
the  rights  and  duties  violated  in  torts  are  imposed  by  law  without,  or 
even  against,  the  assent  of  the  party  and  do  not  require  legal  capacity 
to  assume  them,  where  as  in  contract  the  obligation  or  duty  can  only 
be  taken  on  by  the  voluntary  act  of  the  mind  and  will  of  the  party 
sought  to  be  charged  with  the  duty,  and  therefore  incapacity  prevents 
incurring  such  liability. 

Defendant's  Connection  with  the  Wrongful  Act  or  Omission. 

Eesponsible  causation  involves  the  consideration  not  only  of  the  na- 
ture of  the  act  or  omission  which  is  alleged  to  be  the  cause  of  the  dam- 
age as  considered  above,  but  two  other  matters;  first,  the  connection 
between  the  party  charged  with  the  wrong  and  the  act  or  omission 
charged  to  have  occasioned  the  damage;  and  second,  the  connection 
hetween  such  act  or  omission  and  the  damage  sustained.  As  to  the 
first  of  these,  the  facts  must  show  such  connection  as  makes  the  party 
complained  against  legally  responsible  for  the  alleged  act  or  omission. 
This  divides  itself  into  two  general  questions:  first,  the  liability  of  the 
defendant  for  his  own  conduct;  and  second,  his  liability  for  the  con- 
duct of  others.  The  first  presents  no  special  difficulty,  and  has  practi- 
cally been  covered  in  considering  the  status  of  the  party  complained 
of.  The  second  presents  more  numerous  and  complicated  questions. 
To  render  one  person  legally  responsible  for  the  conduct  of  another, 
there  must  exist  between  them  some  special  relation  or  condition  of 
faets  out  of  which  such  liability  grows.  As  a  general  rule  of  law  one 
person  is  in  no  sense  responsible  for  the  conduct  of  another.  If,  there- 
fore, in  any  given  case  it  is  sought  to  hold  one  legally  responsible  for 
some  act  or  omission  of  another,  the  pleader  must  show  some  special 
conditions  existing  between  them  which  is  a  sufficient  legal  basis  for 
such  liability.  The  most  common  of  these  relations  are  the  following: 
Joint  contractors,  joint  tort  feasors,'  principal  and  agent,  master  and 
servant,  employer  and  independent  contractor,  partners,  husband  and 
wife,  parent  and  child,  guardian  and  ward,  trustee  and  beneficiary.  I 
do  not  mean  to  state  that  this  enumeration  covers  all  of  the  special  rela- 
tions which  may  render  one  party  legally  responsible  for  the  conduct  of 
another,  but  they  include  almost,  if  not  quite,  all  of  them,  and  it  may 
be  safely  stated  that  unless  the  facts  show  that  the  act  or  omission  was 
by  the  defendant  himself,  or  some  one  sustaining  to  him  one  or  more  of 


CAUSE    OF    ACTION.  345 

the  above  enumerated  relations,  that  the  plaintiff  will  have  difficulty, 
if  indeed  he  does  not  fail,  in  establishing  the  defendant's  liability.  On 
the  other  hand,  it  by  no  means  follows  that  the  establishment  of  these 
relations  will  make  the  defendant  liable  for  every  wrong  committed 
by  the  party  sustaining  such  relation  to  him;  for  this  is  not,  and  can 
not  be,  the  law.  An  act  or  omission  of  one  person  to  be  the  basis  of 
liability  by  another  on  account  of  the  representative  capacity  of  the 
former,  must  be  such  an  one  as  comes  fairly  within  the  scope  of  the 
employment  or  within  the  conduct  legitimately  connected  with,  and 
growing  out  of  transaction  as  to  which  he  stands  for  the  other.  There 
are  duties  which  the  law,  either  common  or  statutory,  positively  imposes 
on  some  particular  person,  or  class  of  persons,  and  requires  their  dis- 
charge by  him,  or  them,  and  will  not  permit  him,  or  them,  to  relieve 
himself,  or  themselves,  from  liability  by  delegating  the  performance  ta 
another.  Failure  to  discharge  such  duties  always  leads  to  liability,  if 
injury  follow.  Take  for  illustration  the  common  carrier  and  passen- 
ger. Here  the  carrier  owes  the  duty  to  exercise  a  high  degree  of  care  for 
the  safety  and  protection  of  its  passengers.  This  duty  is  nonassign- 
able.  The  carrier  also  owes  the  duty  to  carry  the  passenger  over  its 
route,  and  to  do  this  must  employ  servants  to  operate  its  vehicles,  etc. 
En  route  a  conductor  in  charge  of  a  train  violently  and  unlawfully 
assaults  a  passenger  in  one  of  the  cars  and  injures  him.  Here  the 
carrier  has  violated  its  nonassignable  duty  of  protection,  and  its  repre- 
sentative has  also  committed  a  wrong  in  his  representative  capacity 
for  which  the  company  is  liable,  and  the  passenger  can  sue  on  either  or 
both  theories  of  the  case.  But  suppose  the  assault  was  made,  not  by  the 
conductor,  but  by  a  drunken  fellow-passenger,  under  such  circum- 
stances that  the  conductor  could  have  prevented  it  by  using  ordinary 
care.  Here  the  company  is  liable  for  a  violation  of  its  nonassignable 
duty  to  use  reasonable  care  to  protect  the  passenger,  and  could  be  held 
responsible  for  its  own  negligence  in  not  making  reasonable  provision 
for  his  safety.  In  such  cases  it  would  be  no  defense  foi  the  company 
to  show,  either  that  it  had  no  conductor  on  the  train,  or  that  he  was 
so  busy  he  could  not  reasonably  prevent  the  assault,  or  that  he  was 
present  and  had  been  instructed  specially  to  prevent  the  injury  and  had 
failed  to  do  so.  The  failure  to  perform  a  nonassignable  duty  is  always- 
to  be  regarded  as  a  personal  failure  of  the  person  on  whom  such  duty 
rests,  and  the  respective  rights  and  duties  of  the  parties  in  these  matters, 
of  course,  are  determined  by  the  rules  of  substantive  law  regarding  these 
several  relations,  and  can  not  be  further  discussed  here.  The  rule  of 
pleading  is  that  in  each  case  the  pleader  must  study  his  case  carefully, 
ascertain  certainly  the  facts  which  constitute  the  conduct  of  the  person 
actually  guilty  of  the  wrong,  and  the  special  relations  between  him  and 
the  defendant  and  allege  all  these  clearly  and  accurately  in  the  peti- 
tion. 


346  N    PLAINTIFF'S   OKIGINAL   PETITION. 

Proximate  Cause. 

To  allege  the  plaintiff's  right,  and  that  the  defendant,  in  person  or 
through  some  one  for  whose  conduct  he  is  legally  responsible,  has  done 
some  wrongful  act,  or  permitted  some  improper  omissio*fi,  contempo- 
raneous with,  or  immediately  preceding  the  damage  sustained  by  the 
plaintiff,  is  still  not  sufficient  to  fix  liability  upon  him.  It  must 
be  further  shown  that  the  damage  was  the  direct  and  proximate  result 
of  this  wrongful  conduct,  and  this  must  be  made  to  appear  affirmatively 
in  the  petition.  Often,  as  in  some  suits  for  breach  of  contract,  the  state- 
ment of  the  failure  of  duty  by  the  defendant  carries  with  it  the  idea 
that  damage  has  resulted  directly  and  proximately  from  the  wrong,  and 
in  such  cases,  of  course,  no  separate  averment  need  be  made,  but  in  suits 
for  torts  generally  and  in  some  cases  of  breach  of  contract,  the  con- 
nection between  the  wrong  and  the  injury  is  not  so  apparent,  and  in 
such  cases  there  must  be  a  distinct  averment  of  the  fact.  Stated  differ-  ' 
ently,  it  is  essential  that  the  petition  shall  show  that  the  injury  com- 
plained of  is  the  direct  and  proximate  result  of  the  wrong  of  the  de- 
fendant. If  this  appears  in  the  general  statement  of  the  case,  there  is 
no  necessity  for  a  separate  averment  to  that  effect ;  if  it  does  not  so  ap- 
pear, then  such  averment  must  be  made. 

In  the  great  majority  of  cases,  if  the  petition  covers  the  points  above 
indicated,  it  will  be  sufficient  to  fix  responsibility  upon  the  defendant. 
There  are,  however,  a  few  instances  in  which,  in  stating  his  case,  the 
plaintiff  shows  such  connection  between  himself  and  the  wrong  charged 
against  the  defendant  as  to  make  out  a  prima  facie  defense  against  his 
case ;  as  in  a  suit  against  a  defendant  for  negligence,  .in  which  the  plain- 
tiff's statement  of  facts  shows  a  prima  facie  case  of  contributory  negli- 
gence on  his  part.  In  such  cases,  and  such  only,  he  must  set  up  facts 
which  would  destroy  this  prima  facie  defense  against  his  case. 

It  is  needless  to  say  that  the  facts  constituting  the  violation  of  the 
right  and  breach  of  duty  vary  with  each  case  according  to  the  nature 
of  the  right  and  the  conduct  of  the  parties,  but  whatever  the  particular 
facts,  the  rule  holds  good  that  in  every  case  .the  violation  of  plaintiff's 
right  must  be  made  to  appear  distinctly  by  direct  averment,  showing  de- 
fendant's responsibility  therefor. 

Legal  Injury. 

The  third  element  in  the  cause  of  action  is  the  legal  injury  to  the 
plaintiff  consequent  upon  the  violation  of  his  right  by  the  defendant. 
This  again  varies  according  to  the  facts  and  circumstances  of  each  case. 
The  general  theory  of  the  common  law  is  to  compensate  for  any  viola- 
tion of  right  by  payment  of  money  as  damage.  There  are  exceptions  to 


PRAYER    FOR   RELIEF. 


347 


this  rule,  such  as  suits  for  specific  property,  real  or  personal,  but  they 
are  rare.  In  equity,  other  remedies  beside  compensation  in  money  are 
less  infrequent,  though  even  here  they  are  not  common.  For  instance, 
under  peculiar  conditions  equity  will  require  specific  performance  of  a 
contract,  or  will  grant  an  injunction  against  the  continuation  of  an  ex- 
isting wrong,  or  to  prevent  a  threatened  injury.  But  be  the  remedy  what 
it  may,  the  facts  showing  injury  and  constituting  the  basis  for  the  court's 
action  in  awarding  and  computing  the  amount  of  the  damage,  or  in  de- 
creeing some  other  appropriate  relief  must  always  be  given.  As  stated 
before,  in  treating  of  the  general  principles  of  pleading,  general  damages, 
that  is,  such  damages  as  not  only  naturally,  but  necessarily,  result  from 
the  wrong  complained  of,  need  not  be  specifically  alleged,  but  may  be 
recovered  under  general  allegations,  but  in  all  cases  in  which  special 
damage  is  sought,  whether  it  constitute  all  the  damage  in  the  case,  or  is 
sued  for  in  connection  with  the  general  damages  recoverable  under  the 
general  averments,  the  facts  showing  the  special  damage,  and  giving  the 
proper  standards  for  its  measurement,  must  be  averred.  If  the  case  is 
such  an  one  as  entitles  the  party  to  some  particular  relief  such  as  specific 
performance,  injunction,  mandamus,  etc.,  the  facts  entitling  to  this  must 
be  particularly  set  out,  and  where  the  relief  is  of  a  kind  that  is  awarded 
only  in  equity,  and  then  only  if  there  is  no  adequate  remedy  at  law,  it  is 
held  that  the  statement  to  this  effect  is  essential,  although  on  principle 
this  would  seem  to  be  questionable. 

The  district  and  county  courts  in  Texas  are  authorized  to  grant  any  re- 
lief to  which  the  party  may  show  himself  entitled,  whether  under  the 
common  law  it  could  be  afforded  by  courts  of  law  or  equity.  That  is,  the 
district  and  county  courts  in  Texas  have  both  common  law  and  equity 
jurisdiction,  and  administer  the  law  in  those  civil  cases  intrusted  to  them 
without  reference  to  the  common  law  distinctions  between  legal  and 
equitable  rights  and  remedies. 


PRAYER  FOR  RELIEF. 

Having  laid  the  -basis  for  so  doing,  the  plaintiff  must,  in  his  petition, 
pray  for  the  relief  desired.  It  is  always  better  to  have  a  prayer  for  gen- 
eral relief  also.  The  ordinary  form  is  to  pray  for  the  particular  relief 
the  party  desires  and  thinks  himself  entitled  to,  and  to  follow  this  by  a 
prayer  for  such  relief,  either  general  or  special,  as  he  may  be,  in  law  or 
equity,  entitled  to  receive.  The  form  is  immaterial,  but  the  dual  prayer, 
including  both  the  special  relief  sought  and  the  general  relief  to  which  he 
may  show  himself  entitled,  should  always  be  made. 

It  is  customary  to  pray  for  citation  against  all  the  defendants,  naming 
them,  requiring  them  to  appear  and  answer  at  the  proper  term  of  court. 
There  are  authorities  in  equity  which  hold  that  complaining  against  a 


348  PLAINTIFF'S  OEIGINAL  PETITION. 

party  in  the  body  of  the  bill  without  following  it  by  a  prayer  for  process 
against  him  does  not  make  him  a  party  defendant,  and  that  only  those 
specifically  mentioned  in  the  prayer  for  process  are  in  fact  defendants  in 
the  suit.  Cases  intimating  this  may  be  found  in  the  Texas  Eeports,  but 
there  is  nothing  in  the  statutes  or  the  rules  requiring  it,  and  it  is  not  be- 
lieved to  be  essential,  although  it  is  desirable. 


SIGNATURE. 

The  petition  must  be  signed  by  the  plaintiff  or  his  attorney,  and  unless 
so  signed  will  not  be  recognized  by  the  court.  It  is  not,  however,  essen- 
tial that  this  signature  should  appear  at  the  close  of  the  instrument.  If 
it  is  indorsed  on  the  back  of  the  petition,  intending  it  to  be  the  signature, 
this  would  be  sufficient,  though  it  would  be  informal.  The  party  signing 
the  pleading  is  responsible  to  the  court  for  its  contents. 


INDORSEMENT. 

The  rules  are  quite  specific  as  to  the  indorsements  to  be  placed  upon 
original  petitions.  The  requirement  is :  "Plaintiff's  Original  Petition," 
and  in  cases  of  trespass  to  try  title  there  must  be  the  further  indorse- 
ment :  "This  action  is  brought  as  well  to  try  title  as  for  damages."  It 
is  also  customary  to  indorse  on  the  back  of  the  petition  the  style  and  num- 
ber of  the  cause.  The  rules  give  specifically  the  proper  designation  of 
each  succeeding  pleading  filed  by  either  party,  and  they  should  be  care- 
fully followed  as  material  aids  in  the  orderly  conduct  of  the  case. 


DEFENDANT'S  ORIGINAL  ANSWER.  349 


CHAPTER  XIV. 

DEFENDANT'S    ORIGINAL   ANSWEE. 

The  plaintiff  having  presented  his  petition  to  the  court,  specifying 
liis  cause  of  complaint  against  the  defendant,  it  is  the  privilege  of  the 
defendant  to  make  known  to  the  court  for  its  consideration  any  matter 
constituting  a  legal  or  equitable  defense  to.  such  complaint. 

These  defensive  matters  may  be  of  various  kinds, — some  of  them  only 
tend  to  delay  the  proceedings,  some  to  defeat  the  particular  suit,  and 
some  to  permanently  defeat  the  cause  of  action. 

Each  of  these  defenses  must  be  either  a  denial  of  some  matter  of  law 
or  fact  asserted  by  the  plaintiff,  or  a  confession  that  the  facts  as  plead  by 
the  plaintiff  are  true,  followed  by  allegations  that  by  reason  of  some 
other  facts  contemporaneous  therewith  they  never  constituted  a  cause  of 
action,  or  of  some  other  facts  occurring  subsequently  thereto,  the  cause 
of  action  which  once  existed  has  been  legally  discharged  and  avoided, 
or  the  assertion  of  some  matter  of  estoppel  cutting  the  plaintiff  off  from 
any  legal  advantage  from  the  facts  plead  by  him.  Pleadings  interposing 
defenses  of  the  first  kind — that  is.  those  denying  the  law  or  the  facts — 
are  the  means  by  which  the  defendant  joins  issue  on  the  facts  tendered 
by  the  plaintiff;  pleadings  interposing  defenses  of  the  second  and  third 
kinds — that  is,  confessing  and  avoiding  the  facts  alleged  by  the  plaintiff 
or  of  estoppel — are  not  methods  of  joining  issue  with  the  plaintiff,  but 
are  means  of  tendering  to  him  new  issues,  by  the  defendant. 

As  every  pleading  tendering  an  issue,  by  whatever  party  presented, 
necessarily  involves  matter  both  of  law  and  fact,  so  the  joinder  of  issue 
on  every  such  pleading  may  be  either  on  the  law  or  on  the  facts,  or  on 
both.  This  is  true  without  reference  to  the  class  of  pleading,  whether 
dilatory  or  in  bar,  in  which  the  issues  are  tendered,  or  the  stage  of  the 
proceedings  at  which  they  are  filed. 

Issues  of  law  are  joined  by  demurrer  to  the  particular  pleading  tender- 
ing the  issue.  This  demurrer  admits,  for  the  time  being,  the  truth  of 
the  facts  alleged  in  the  pleading  demurred  to,  and  asks  the  judgment  of 
the  court  as  to  the  law  applicable  thereto.  Issues  of  fact  are  joined  by 
either  general  or  special  denial  of  the  facts,  or  in  some  instances  occurring 
after  filing  of  the  original  answer  to  be  noted  as  we  progress,  they  are 
joined  by  presumption  of  law  without  formal  pleading. 


350  DEFENDANT'S  ORIGINAL  ANSWER. 


THE  STATUTES  AND  RULES  REGARDING  PLEADING  BY 
THE  DEPENDANT  ARE  AS  FOLLOWS: 

Statutes. 

"The  defendant  in  his  answer  may  plead  as  many  several  matters, 
whether  of  law  or  facts,  as  he  shall  think  necessary  for  his  defense,  and 
which  may  be  pertinent  to  the  cause,  provided,  that  he  shall  file  them  all 
at  the  same  time,  and  in  due  order  of  pleading. 

"In  all  cases  in  which  the  citation  has  been  personally  served  at  least 
ten  days  before  the  first  day  of  the  term  to  which  it  is  returnable,  ex- 
clusive of  the  day  of  service  and  return,  the  answer  of  the  defendant  shall 
be  filed  in  the  county  and  district  courts,  on  or  before  the  second  day  of 
the  return  term,  and  before  the  call  of  the  appearance  docket  on  said 
second  day. 

"In  all  cases  in  which  service  of  the  citation  has  been  made  by  publi- 
cation the  answer  shall  be  filed  on  or  before  appearance  day  of  the  term 
nest  succeeding  that  to  which  such  citation  is  returnable. 

"An  answer  setting  up  any  of  the  following  matters,  unless  the  truth 
of  the  pleadings  appear  of  record,  shall  be  verified  by  affidavit : 

"1.    That  the  suit  is  not  commenced  in  the  proper  county. 

"2.    That  the  plaintiff  has  not  legal  capacity  to  sue. 

"3.  That  the  plaintiff  is  not  entitled  to  recover  in  the  capacity  in 
which  he  sues. 

"4.  That  there  is  another  suit  pending  in  this  State  between  the  same 
parties  for  the  same  cause  of  action. 

"5.    That  there  is  a  defect  of  parties,  plaintiff  or  defendant. 

"6.  A  denial  of  partnership  as  alleged  in  the  petition  whether  the 
same  be  on  the  part  of  the  plaintiff  or  defendant. 

"7.  That  the  plaintiff  or  the  defendant,  alleged  in  the  petition  to  be 
duly  incorporated,  is  not  duly  incorporated  as  alleged. 

"8.  A  denial  of  the  execution  by  himself  or  by  his  authority  of  any 
instrument  in  writing,  upon  which  any  pleading  is  founded,  in  whole  or 
in  part,  and  charged  to  have  been  executed  by  him  or  by  his  authority, 
and  not  alleged  to  be  lost  or  destroyed.  Where  such  instrument  in  writ- 
ing is  charged  to  have  been  executed  by  a  person  then  deceased,  the  affida- 
vit will  be  sufficient  if  it  state  that  the  affiant  has  reason  to  believe  and 
does  believe  that  such  instrument  was  not  executed  by  the  decedent  or  by 
his  authority. 

"9.  A  plea  denying  the  genuineness  of  the  indorsement  or  assignment 
of  a  written  instrument,  as  required  by  article  313. 

"10.  That  a  written  instrument  upon  which  a  pleading  is  founded 
is  without  consideration,  or  that  the  consideration  of  the  same  has 
failed  in  whole  or  in  part. 


STATUTES  AND  RULES  REGARDING  PLEADING.          351 

"11.  That  an  account  which  is  the  foundation  of  the  plaintiff's  action, 
and  supported  by  an  affidavit,  is  not  just,  and  in  such  case  the  answer 
shall  set  forth  the  items  and  particulars  which  are  unjust. 

"12.    That  the  contract  sued  upon  is  usurious. 

"In  every  action  in  which  a  defendant  shall  desire  to  prove  any  pay- 
ment, counter-claim  or  set-off,  he  shall  file  with  his  plea  an  account 
stating  distinctly  the  nature  of  such  payment,  counter  claim  or  set-off, 
and  the  several  matters  thereof;  and  on  failure  to  do  so  he  shall  not  be 
entitled  to  prove  the  same  unless  it  be  so  plainly  and  particularly  de- 
scribed in  the  plea  as  to  give  the  plaintiff  full  notice  of  the  character 
thereof."1 

"The  laws  of  limitation  of  this  State  shall  not  be  available  to  any  per- 
son in  any  suit  in  any  of  the  courts  of  this  State  unless  it  be  specially  set 
forth  as  a  defense  in  his  answer."2 

"It  shall  be  unlawful  for  any  person,  firm,  corporation,-  association  or 
combination  of  whatsoever  kind  to  enter  into  any  stipulation,  contract  or 
agreement  by  reason  whereof,  the  time  in  which  to  sue  thereon  is  limited 
to  a  shorter  period  than  two  years.  And  no  stipulation,  contract,  or 
agreement  for  any  such  .shorter  limitation  in  which  to  sue  shall  ever  be 
valid  in  this  State. 

"No  stipulation  in  any  contract  requiring  notice  to  be  given  of  any 
claim  for  damages  as  a  condition  precedent  to  the  right  to  sue  thereon 
shall  ever  be  valid  unless  such  stipulation  is  reasonable,  and  any  such 
stipulation  fixing  the  time  within  which  such  notice  shall  be  given  at  a 
less  period  than  ninety  days  shall  be  void,  and  when  any  such  notice  is  re- 
quired, the  same  shall  be  given  to  the  nearest  or  any  other  convenient 
local  agent  of  the  company  requiring  the  same.  In  any  suit  brought 
under  this  and  the  preceding  article  it  shall  be  presumed  that  notice 
has*  been  given/  :~uoiless  the  want  of.  notice  is  specially  pleaded  under 
oath."3 

<rWhere  the  defendant  has  pleaded  the  general  denial,  and  the  plaintiff 
shall  afterward  amend  his  pleading,  it  shall  not  be  necessary  for'  the  de- 
fendant to  plead  such  denial  a  second  time,  but  such  original  denial  shall 
be  presumed  to  extend  to  all  matters  subsequently  set  up  by  the  plaintiff. 

"Pleas  shall  be  filed  in  the  due  order  of  pleading,  and  shall  be  heard 
and  determined  in  such  order  under  the  direction  of  the  court. 

"Pleas  to  the  jurisdiction,  pleas  in  abatement,  and  other  dilatory 
pleas  and  demurrers,  not  involving  the  merits  of  the  case,  shall  be  de- 
termined during  the  term  at  which  they  are  filed,  if  the  business  of  the 
court  will  permit."* 

1  Rev.  Stats.  1895,  arts.  1262,  1263,  1264,  1265,  1266. 

2  Rev.  Stats.  1895.  art.  3371. 

3  Rev.  Stats.  1895,  arts.  3378,  3379. 

4  Rev.  Stats.  1895,  arts.  1267,  1268,  1269. 


352  DEFENDANT'S  ORIGINAL  ANSWER. 

Rules  of  the  Court. 

"THE  ANSWER. 

"6.  The  answer  of  defendant  shall  consist  of  an  original  answer, 
.and  such  other  supplemental  answers  as  may  be  necessary,  in  the  course 
-of  pleading  by  the  parties  to  the  suit,  to  enable  the  defendant  to  state 
all  of  the  exceptions  and  facts,  representing  his  defense,  as  contained  in 
his  original  answer,  or  his  cross  action,  if  one  be  set  up  in  the  original 
answer,  and  such  other  facts  as  may  be  required  to  rebut  the  facts  that 
may  be  stated  in  the  original  and  supplemental  petitions,  as  pleaded  by 
the  plaintiff.  The  original  answer  and  the  supplemental  answers  shall  be 
indorsed,  so  as  to  show  their  respective  positions  in  the  process  of  plead- 
ing,, as  'original  answer/  'defendant's  first  supplemental  answer/  'de- 
fendant's second  supplemental  answer/  and  so  on,  to  be  successively 
numbered,  named  and  indorsed. 

"ORIGINAL  ANSWER. 

"7.  The  original  answer  ftay  consist  of  pleas  to  the  jurisdiction,  in 
abatement,  of  privilege,  or  any  other  dilatory  pleas ;  of  exceptions,  general 
and  special,  of  general  denial,  and  any  other  facts  in  defense  by  way  of 
avoidance  or  estoppel,  the  same  being  pleaded  in  the  due  order  of  plead- 
ing, as  required  by  statute ;  and  it  may'  present  a  cross-action,  which 
to  that  extent  will  place  defendant  in  the  attitude  of  a  plaintiff.  Facts 
in  avoidance  and  estoppel  may  be  stated  together,  or  in  several  special 
pleas,  each  presenting  a  distinct  defense,  and  numbered  so  as  to  admit 
of  separate  issues  to  be  formed  on  them. 

"SUPPLEMENTAL  ANSWERS. 

"8.  The  defendant's  supplemental  answers  may  contain  exceptions, 
general  denial,  and  allegations  of  new  facts,  not  before  alleged  by  him. 
in  reply  to  that  which  has  been  alleged  by  the  plaintiff." 

"EXCEPTIONS  TO  PLEADING. 

"17.  General  exceptions  shall  point  out  the  particular  instrument  in 
the  pleading,  to  wit :  the  original  petition  or  answer,  or  the  respective  sup- 
plements to  either;  and  in  passing  upon  such  general  exception  every 
reasonable  intendment  arising  upon  the  pleading  excepted  to  shall  be 
indulged  in  favor  of  its  sufficiency. 

"18.  A  special  exception  shall  not  only  point  out  the  particular 
pleading  excepted  to,  but  it  shall  also  point  out  intelligently  the  ob- 
.scurity,  inconsistency,  duplicity,  generality,  or  other  insufficiency  in  the 
allegations  in  the  pleading  objected  to.  The  general  expression  that  it 


NUMBER   OF   DEFENSES ORDER   OF   PRESENTING.  353 

is  vague,  uncertain,  and  the  like,  alone  shall  be  regarded  as  no  more  than 
a  general  exception." 

"DILATORY  PLEAS,  MOTIONS  AND  EXCEPTIONS,  WHICH  Do  NOT  Go  TO 
THE  MERITS  OF  THE  CAUSE. 

"24.  All  dilatory  pleas,  and  all  motions  and  exceptions  relating  to  a 
suit  pending,  which  do  not  go  to  the  merits  of  the  case,  shall  be  tried  at 
the  first  term  to  which  the  attention  of  the  court  shall  be  called  to  the 
same,  unless  passed  by  agreement  of  parties  with  the  consent  of  the 
court ;  and  all  such  pleas  and  motions  shall  be  called  and  disposed  of  be- 
fore the  main  issue  on  the  merits  is  tried." 

"MOTIONS  AND  EXCEPTION  TO  MERITS. 

"25.  All  motions  which  go  to  the  merits  of  the  case,  and  all  excep- 
tions, general  and  special,  which  relate  to  the  substance  or  to  the  form 
of  pleading,  shall  be  decided  at  the  first  term  of  the  court,  when  the  case 
is  called  in  the  regular  order  for  trial  on  the  docket,  if  reached,  whether 
there  be  an  announcement  on  the  facts  or  not,  unless  passed  by  agee- 
ment  of  parties  with  the  consent  of  the  court." 


NUMBER   OF    DEFENSES    AND    ORDER   OF    PRESENTING 
THEM. 

The  statutes  secure  to  the  defendant  the  right  to  interpose  all  the 
defenses  he  may  have.  There  are  only  two  restrictions  on  this  right: 
First,  they  must  be  presented  at  the  same  time ;  and  second,  in  due  order 
of  pleading. 

The  rules  recognize  this  right  and  enumerate  the  several  lands  of  de- 
fenses and  the  classes  of  pleadings  by  which  they  may  be  interposed. 
They  also  require  that  the  defenses  be  presented  in  due  order. 

There  are  two  of  these  rules  as  to  due  order  which  are  of  universal 
application.  The  first  is  that  dilatory  pleas  must  be  presented  before 
pleas  in  bar,5  and  the  second,  that  in  joinder  of  issues  on  any  pleading, 
the  issues  of  law  must  be  joined  before  issues  of  fact.6  The  order  to  be 
observed  among  the  several  kinds  of  dilatory  p]eas  is  not  entirely  free 
from  difficulty,  as  there  is  some  disagreement  between  the  common  law 
order  and  the  order  in  which  several  pleas  are  enumerated  in  the  rules. 
The  order  of  pleas  in  bar  is  free  from  doubt. 

4  See  page  —  supra. 

'Moore  v.  Torrey,  1  Texas,  43;  Walling  v.  Williams,  4  Texas,  427;  Watson  v. 
Loop,  12  Texas,  13;  Hutchins  v.  Lockett,  39  Texas,  167. 

23 — Pleading 


354  DEFENDANT'S  OEIGINAL  ANSWER. 


DISTINCTION    BETWEEN    DILATORY  PLEAS  AND  PLEAS 
IN  BAB. 

It  is  essential  at  the  outset  to  distinguish  between  the  two  general 
classes  of  defenses  known  as  dilatory  pleas,  on  the  one  hand,  and  pleas  in 
bar,  or,  as  they  are  frequently  called,  peremptory  pleas,  on  the  other. 
The  test  is  a  simple  one,  and  ordinarily  easy  of  application,  though  in  a 
few  cases  it  is  a  little  difficult. 

Dilatory  pleas  embrace  all  those  defenses  which  only  delay  or  defeat 
the  present  suit  or  action,  leaving  the  cause  of  action  unsettled,  so  that 
it  may  be  litigated  at  some  later  time.  Pleas  in  bar  present  matters 
which  not  only  settle  the  particular  suit  in  which  they  are  interposed, 
but  go  further  and  settle  finally  the  cause  or  causes  of  action  involved  in 
the  suit  and  cut  off  all  litigation  regarding  them  in  any  subsequent  suit 
between  the  same  parties. 


DILATORY  PLEAS  PRECEDE  PLEAS  IN  BAR. 

As  defenses  are  to  be  acted  on  in  the  same  order  in  which  they  are 
plead,  the  reason  for  requiring  that  the  dilatory  pleas  shall  precede  those 
in  bar  is  found  in  the  nature  of  the  pleas  themselves.  It  would,  of  course, 
be  futile  to  insist  on  delaying  or  defeating  a  particular  suit  after  hearing 
on  the  merits  and  final  adjudication  of  the  rights  of  the  parties  in  tha 
matter  in  controversy.7  Dilatory  pleas  must  precede  pleas  in  bar,  and 
must  be  acted  on  before  the  pleas  in  bar  are  finally  adjudged,  or  they 
can  not  be  considered  by  the  court.  This  order  is  always-  to  be  ob- 
served.8 There  is  one  point  here  which  must  be  guarded  for  fear  of  mis- 
apprehension. There  are  a  few  matters  of  such  nature  as  to  be  available 
in  abatement  of  the  suit  at  whatever  time  they  may  come  to  the  knowl- 
edge of  the  court — whether  before,  during  or  after  the  trial.  Failure 
to  present  these  matters  by  plea  in  abatement  does  not  prevent  their  con- 
sideration at  subsequent  stages  of  the  litigation,  nor  weaken  their  force 
when  thus  presented.  Among  these  are  questions  of  potential  jurisdic- 
tion over  the  subject  matter  or  the  person,  and  in  some  suits  a  mis- 
joinder  of  parties,  plaintiff  or  defendant,  and  others.  These  will  be 
discussed  more  fully  as  we  deal  with  them  separately. 

1  Hardy  v.  Broaddus,  35  Texas,  684. 

'Crosby  v.  Huston,  1  Texas,  225;  Horton  v.  Wheeler,  17  Texas,  54;  Spencer  v. 
James,  10  Texas  Civ.  App.,  327,  31  S.  W.,  540;  Logan  v.  Loan  Assn.,  8  Texas 
Civ.  App.,  490,  28  S.  W.,  141. 


DILATORY    PLEAS.  355 


DILATORY  PLEAS. 

Due  Order  Among  Dilatory  Pleas. 

The  order  6f  presenting  dilatory  pleas  at  common  law  is  as  follows: 

1.  To  jurisdiction  of  court. 

(a)  Subject  matter;  (b)  Person  of  defendant. 

2.  Abatement  of  suit. 

(a)  Disability  of  person;  first  of  plaintiff,  second  of  defendant. 

(b)  To  the  writ. 

(c)  To  the  petition. 

These  are  enumerated  in  the  rules  as  follows: 

1.  Pleas  to  the  jurisdiction. 

2.  In  abatement. 

3.  Of  privilege. 

4.  Other  dilatory  pleas.9 

It  is  evident  that  the  rules  give  simply  the  more  general  divisions  of 
these  dilatory  pleas,  and  contemplate  that  the  more  minute  classification 
shall  be  made  according  to  the  accepted  order  at  common  law. 

In  both  the  common  law  order  and  the  enumeration  in  the  rulea 
the  first  defensive  matter  to  be  presented  is  want  of  jurisdiction  of  the 
court  to  hear  the  case.  This  evidently  relates  to  potential  jurisdiction, 
that  is,  authority  conferred  by  the  sovereign  to  adjudge  the  matter  pre- 
sented as  between  the  parties  sought  to  be  bound  by  the  adjudication.  It 
embraces  both  jurisdiction  of  the  subject  matter  and  of  the  person. 
It  is,  of  course,  logical  that  the  court  should  determine  at  the  outset 
whether  or  not  it  has  power  to  hear  the  case.  The  logic  of  requiring 
the  defendant  to  advise  the  court  of  this  lack  of  jurisdiction  over  the 
subject  matter,  when  this  is  to  be  decided  on  the  facts  presented  by  the 
plaintiff's  petition,  is  not  so  apparent;  indeed,  no  such  necessity  exists, 
and  it  is  the  recognized  duty  of  the  court  to  stay  the  proceedings  at  any 
stage  when  this  condition  shall  come  to  its  attention :  There  can  be  no 
waiver  of  this  matter  by  failing  to  plead  in  abatement. 

When,  however,  the  lack  of  jurisdiction  relates  to  the  person  of  the  de- 
fendant, the  question  is  not  so  clear,  either  on  principle  or  by  the  au- 
thorities. At  common  law,  in  England,  where  there  are  so  many  and 
such  widely  separated  classes  of  persons,  each  having  its  peculiar  privi- 
leges and  burdens,  and  also  in  the  Federal  courts,10  where  jurisdiction  is 
often  dependent  on  the  citizenship  of  the  different  parties  to  the  suit,  oc- 
casions for  interposing  this  plea  are  much  more  frequent  than  in  Texas. 

•  Rules  for  District  and  County  Courts,  No.  7. 

10  De  Wolfe  v.  Roland,  1  Peters,  498;  Torrington  v.  Pillsbury,  114  U.  S.,  138. 


356  DEFENDANT'S  ORIGINAL  ANSWER. 

It  is  possible  that  an  occasion  to  urge  it  might  arise  in  the  courts  of  this 
State,  but  none  has  done  so  so  far,  at  least  there  is  no  such  case  -re- 
ported. This  lack  of  potential  jurisdiction  over  the  person  must  be 
carefully  distinguished  from  the  personal  privilege  of  the  defendant  to 
be  sued  in  a  particular  county,  which  is  designated  in  the  rules  as  "plea  of 
privilege/'  and  will  be  further  considered  under  that  head. 

Not  only  must  all  dilatory  pleas  precede  pleas  in  bar,  but  due  order 
must  be  observed  among  the  different  kinds  of  dilatory  pleas,  and  a 
failure  to  do  this  will  be  regarded  as  a  waiver  of  all  those  dilatory  pleas 
which,  according  to  the  rules  of  pleading,  should  have  preceded  the  one 
filed.  To  illustrate:  A  plea  of  privilege  to  be  sued  in  the  county  of 
one's  residence  would  be  a  waiver  of  the  right  to  object  to  the  citation  or 
service.  So  it  is  important  to  have  clear  ideas  and  accurate  information 
as  to  the  rules  governing  these  matters. 


Pleas  in  Abatement. 

•(a)  Disability  of  the  Party. 

First,  of  the  plaintiff ;  second,  of  the  defendant. 

The  most  frequent  disabilities  of  the  parties  in  suits  by  natural  persons 
are  coverture,  minority,  and  mental  unsoundness;  hostile  alienage  also 
comes  in  this  class. 

The  effect  of  these  different  conditions  on  the  right  to  bring  suit  has 
already  been  considered.11 

These  pleas  are  only  to  be  made  of  conditions  existing  at  the  time  the 
plea  is  filed  and  are  to  be  distinguished  from  defenses  based  on  similar 
conditions  existing  at  the  time  the  plaintiff's  right  or  cause  of  action 
is  charged  to  have  occurred.  To  illustrate:  A  sues  B  on  a  promissory 
note.  At  the  date  the  note  was  given  A  was  a  single  woman ;  since  that 
time  she  has  married.  Here  A  has  a  good  cause  of  action  against  B; 
the  fact  of  her  marriage  not  affecting  her  substantive  rights,  but  as  she 
is  now  a  married  woman,  the  suit  should  be  brought  by  her  and  her 
husband  together.  If,  however,  she  sues  alone  without  joining  her 
husband,  B  would  have  to  plead  the  marriage  in  abatement  of  the  suit, 
and  if  he  did  not,  he  could  not  avail  himself  of  her  disability  on  the  trial. 

But  suppose  the  party  giving  the  note  was  a  married  woman  at  the 
time  it  was  executed,  and  she  is  sued  on  it,  her  coverture  here  goes  be- 
yond the  question  of  present  incapacity  to  be  sued,  and  includes  her 
incapacity  to  bind  herself  by  promise  at  the  time  the  note  was  given,  and 
is  not  a  matter  of  abatement  but  in  bar.  The  same  is  true  as  to  minority. 
If  a  minor  makes  a  contract,  and  is  sued  on  it  after  he  becomes  of  age, 

"Chapter  VIII,   Parties. 


DILATORY    PLEAS.  357 

he  can  not  plead  his  former  minority  in  abatement  of  the  suit,  for  he  is 
now  capable  of  making  his  defense,  and  must  meet  the  case  on  its  merits 
and  have  the  contract  avoided  because  he  was  not  capable  of  entering  into 
it  when  it  was  attempted  to  be  made. 

If,  however,  a  minor  should  commit  a  tort  for  which  he  would  be 
legally  responsible  and  were  sued  for  it  during  his  minority,  notwith- 
standing his  liability  on  the  cause  of  action,  he  is  not  regarded  in  law  as 
capable  of  properly  defending  the  suit,  and  so  could  plead  his  minority 
in  abatement. 

The  limitations  on  rights  of  foreign  corporations  to  sue  have  already 
been  discussed.  If  the  petition  shows  the  corporation  to  be  foreign  and 
the  transaction  one  to  which  the  statute  applies,  and  fails  to  allege  com- 
pliance with  the  conditions  precedent,  the  defense  will  be  available  by  ex- 
ception. If  it  makes  the  allegations  and  fails  to  prove  them,  this  will, 
under  recent  decisions,  be  fatal  to  its  suit;  so  while  it  is  proper  and  per- 
missible to  plead  its  incapacity  in  abatement,  it  now  seems  not  necessary 
to  do  so.12 

To  the  Writ. 

At  common  law,  the  original  writ  was  the  beginning  and  foundation 
of  the  suit.  Here  the  suit  is  instituted  by  petition,  and  the  sole  pur- 
pose of  the  writ  or  citation  is  to  acquire  active  jurisdiction  over  the  per- 
son of  the  defendant.  Strictly  speaking,  there  can  be  no  plea  in  abate- 
ment of  the  writ  in  our  practice.  Objections  to  the  citation  or  to  the  re- 
turn may  be  made  by  motion  to  quash,  or  by  plea  denominated  a  plea  in 
abatement,  but  the  suit,  if  otherwise  properly  brought,  would  never  be 
abated  on  such  ground.  If  the  points  were  well  taken,  they  would  be  sus- 
tained, and  the  cause  continued  to  the  next  term;  at  which  time  the 
defendant  «would  be  compelled  to  answer,  as,  under  the  statute,  his  ap- 
pearance in  filing  the  motion  or  plea  would  subject  him  fully  to  the 
jurisdiction  of  the  court  at  that  time. 

To  the  Petition. 

Pleas  in  abatement  of  the  petition  are  based  on  the  mis  joinder  of 
causes  of  action,  or  the  nonjoinder  or  misjoinder  of  necessary  parties 
plaintiff  or  defendant.  If  either  of  these  conditions  is  apparent  from  the 
petition,  it  should  be  taken  advantage  of  by  plea  in  abatement.  It 
might  be  possible  in  some  cases  to  raise  the  point  by  special  exception, 
but  this  is  unsafe  and  not  to  be  relied  on. 

It,  however,  frequently  occurs  that  the  grounds  of  abatement  do  not 
appear  on  the  petition.  Under  these  circumstances,  if  it  is  desired  to 


12  Tabcr  v.  Interstate  B.  &  L.  Assn.,  91  Texas,  92,  40  S.  W.,  954;  Western  Paper 
Bag  Co.  v.  Johnson,  38  S.  W.,  364. 


358  DEFENDANT'S  ORIGINAL  ANSWER. 

abate  the  suit,  a  plea  in  abatement  must  be  prepared,  and  it  must  set 
out  the  facts  fully  and  be  verified. 

Some  cases  arise  in  which  the  plaintiff,  though  the  petition  be  good, 
has  not  correctly  set  out  the  case  which  his  testimony  will  sustain.  Here 
the  defendant  can  safely  waive  the  plea  in  abatement,  and  exclude  the 
testimony  when  it  is  offered.  To  illustrate:  Suppose  a  contract  is  joint 
between  two  obligees,  and  one  of  them  sues  alone,  declaring  on  the 
contract  as  several.  The  defendant  could  join  issue  on  the  merits  and 
object  to  the  testimony  when  offered  because  of  the  variance  between  the 
pleading  and  the  proof.13 

Pleas  of  Personal  Privilege. 

These  are  dilatory  pleas  setting  up  a  privilege  by  the  defendant  to  have 
the  matters  in  controversy  in  the  case  tried  in  some  other  court.  They  set 
up  matters  of  venue  and  not  of  jurisdiction,  and  are  waived  if  not  plead 
in  advance  of  pleading  to  the  merits.14 


Certainty  in  Dilatory  Pleas. 

The  rules  as  to  the  certainty  and  form  of  all  dilatory  pleas  are  very 
strict.  Such  pleadings  must  not  only  negative  all  facts  giving  the 
right  to  maintain  the  suit  at  the  time  and  place  sought  by  the  plaintiff, 
but  must  go  further,  and,  tested  alone  by  its  own  allegations  must  give 
to  him  all  the  information  he  may  need  to  enable  him  to  prepare  and 
bring  the  suit  properly  if  the  plea  should  be  sustained.15  There  are  a  great 
many  different  expressions  used  to  indicate  the  degree  of  certainty  re- 
quired, but  the  rule  stated  above  combines  the  substance  of  them.  It 
is  not  necessary  in  such  plea  to  negative  every  conceivable  state  of  facts 
which  would  give  jurisdiction  to  the  court  of  some  suit,  but  only  every 
state  of  fact  consistent  with  the  cases  as  stated  by  the  plaintiff,  and 
which  might  give  the  court  jurisdiction  over  it. 

Thus,  if  a  defendant  is  sued  out  of  the  county  of  his  residence  on  a 
contract,  he  does  not  have  to  negative  all  the  twenty  or  thirty  exceptions 
in  the  statute  on  venue  which  will  authorize  suing  him  away  from  his 
home,  but  only  such  of  them  as  apply  to  suits  on  contract.  Again,  if  the 
suit  were  on  a  tort,  he  would  not  have  to  negative  the  special  facts  giving 
venue  in  suits  on  contract.  The  plea  must  be  judged  of  by  the  plaintiff's 

13Stachely  v.  Peirce,  28  Texas,  328. 
"See  Chapter  on  Venue,  ante,  p.  211. 

"Breen  v.  Railroad  Co.,  44  Texas,  304;  Boothe  v.  Fiest,  80  Texas,  144;  Gavin  v. 
Hill,  83  Texas,  76,  18  S.  W.,  323;  Carothers  v.  Mcllhenny,  63  Texas,  138;  State  v. 
Goodnight,  70  Texas,  688,  11  S.  W.,  119;  Hamm  v.  Drew,  83  Texas,  79,  18  S.  W,. 
434. 


DILATORY   PLEAS.  359 

'case,  and  if  it  show  affirmatively  and  certainly  that  the  particular  case 
does  not  come  under  any  of  the  exceptions,  and  that  as  to  it  he  is  privi- 
leged to  be  sued  in  his  own  county,  that  will  be  sufficient.16 

Verification. 

As  stated  in  discussing  General  Principles,  the  statutes  formerly  re- 
quired all  pleas  in  abatement  to  be  verified.  This  article  was  omitted 
from  the  Eevised  Statutes  of  1879,  and  article  1265,  quoted  supra,  in- 
serted. The  first  seven  classes  of  pleadings  required  by  it  to  be  verified 
are  dilatory  in  their  nature.  The  requirement  for  verification  is  not 
universal,  but  only  applies  in  cases  in  which  the  truth  of  the  matter  en- 
titling the  party  to  abate  the  suit  is  not  apparent  on  the  record.  When- 
ever it  is  apparent  of  record,  the  issue  may  be  joined  as  a  matter  of  law, 
and  the  facts  are  not  required  to  be  repeated  by  the  defendant.  It  is  safer 
to  verify  all  dilatory  pleas,  whether,  strictly  speaking,  they  fall  within 
the  enumeration  of  the  present  statute  or  not.  The  precedents  all  favor 
this  practice,  and  it  is  always  desirable  to  prepare  pleadings  in  such  way 
that  no  question  as  to  their  sufficiency  will  be  raised.  I  do  not  mean  that 
it  has  been  definitely  settled  that  it  is  essential  under  the  present  statute 
to  verify  dilatory  pleas  not  embraced  in  it;  for  the  point  does  not  seem 
to  have  been  raised,  and  it  is  possible,  though  not  probable,  that  it 
would  not  be  regarded  as  necessary.  For  further  discussion  see  Chapter 
XII,  ante,  Verification. 


Enumeration  of  Matters  Which  Must  be  Presented  by  Pleas  in 
Abatement. 

Before  passing  to  the  consideration  of  pleas  in  bar,  we  will  enumerate 
some  matters  which  must  be  set  up  by  pleas  in  abatement. 

Misnomer  of  a  party  is  one  of  these,  and  unless  it  is  so  plead  advantage 
can  not  be  taken  of  the  error  except  in  the  few  cases  in  which  variance 
between  allegation  and  proof  may  be  insisted  on,  as  in  case  of  written  in- 
struments in  which  the  misnomer  is  descriptive  of  the  instrument.17 

Alienage  of  plaintiff;18  defect  of  parties;19  incapacity  of  parties;20 

"Tignor  v.  Toney,  13  Texas  Civ.  App.,  518,  35  S.  W.,  881. 
"Tryon  v.  Butler,  9  Texas,  553. 
18  Lee  v.  Salinas,   15  Texas,  495. 

"Holiman  v.  Rogers,  6  Texas,  97;  Anderson  v.  Chandler,  18  Texas,  438;  Davis 
v.  Willis,  47  Texas,  162. 

'"Timlin  v.  Weatherford,  Ball.,  591;  Coles  v.  Perry,  7  Texas,  171;  O'Neal  v. 
Tisdale,  12  Texas,  40;  Lee  v.  Hamilton,  12  Texas,  417;  Clifton  v.  Lilley,  12  Texas, 
134;  Allen  v.  Pannell,  51  Texas,  109;  Hemmingway  v.  Matthews,  10  Texas,  207; 
Cundiff  v.  Herron,  33  Texas,  623. 


360  DEFENDANT'S  ORIGINAL  ANSWER. 

lack  of  authority  to  sue  in  name  of  county;21  objections  to  the  venue 
of  a  suit;22  and  also  claims  that  the  amount  in  controversy  is  fraudu- 
lently alleged  at  a  greater  sum  than  reasonably  could  be  demanded  in 
order  to  give  jurisdiction  to  the  court,  are  each  of  this  nature.  These 
are  by  no  means  all  the  various  matters  which  are  dilatory  in  their  nature, 
but  will  suffice  for  illustration. 


Practice  When  Plea  in  Abatement  is  Piled. 

It  is  a  general  rule,  with  very  few  exceptions,  that  matters  which 
should  be  presented  by  pleas  in  abatement  can  not  be  considered  by  the 
court  in  the  absence  of  such  plea ;  thus,  if  the  plaintiff  alleges  in  his  peti- 
tion facts  which  will  give  venue  in  the  county  in  which  the  suit  is 
brought,  in  the  absence  of  such  plea  he  is  not  required  to  prove  these 
facts,  nor  can  the  defendant  disprove  them  for  the  purpose  of  affecting 
the  venue  of  the  suit.23 

But  the  practice  is  very  different  when  such  pleas  are  filed.  As  illus- 
trative of  this  difference  we  cite  some  cases  on  the  question  of  venue. 

In  the  early  case  of  Eobertson  v.  Ephriam,24  in  an  opinion  by  Chief 
Justice  Hemphill,  the  court  says :  "The  petition  stated  the  defendant  to 
be  a  resident  of  Lavaca  County.  This  gave  jurisdiction  to  the  court  in 
that  county.  The  plea  averred  residence  in  Harris  County.  The  pre- 
sumption from  the  petition  was  that  the  court  had  jurisdiction.  This 
presumption  could  be  rebutted  by  allegation  and  proof;  and  the  defend- 
ant having  alleged  a  sufficient  cause  to  impeach  the  jurisdiction  was,  it 
was  believed,  under  the  rules  of  evidence,  bound  to  prove  it.  We  have 
been  referred  to  no  previous  decisions  of  this  court  on  this  subject,  nor  in 
fact  to  any  other  authority ;  but  there  seems  to  be  much  reason  in  holding 
the  burden  of  proof  must  be  on  the  defendant,  who  alleges  facts  which 
negative  the  jurisdiction." 

It  would  be  difficult  to  state  more  plainly  that  the  defendant  must 
establish  by  evidence  the  truth  of  the  matters  set  up  by  him  in  his  plea 
of  abatement.  The  venue  in  this  case  was  fixed  by  the  residence  of  the 
defendant,  which  ordinarily  is  not  in  issue  and  need  not  be  proved  by  the 
plaintiff,  and  not  by  an  issuable  fact  in  the  case,  such  as  fraud  or  a 
trespass  or  a  crime  committed  in  the  county. 

And,  while  neither  the  opinion  nor  its  reasoning  take  into  account  any 

21  Smith  v.  Wingate,  61  Texas,  56. 

"Russell  v.  Railway  Co.,  68  Texas,  650,  5  S.  W.,  686;  Miller  v.  Rusk,  17  Texas, 
171;  Compton  v.  Stage  Co.,  25  Texas  Supp.,  77;  Blum  v.  Strong,  71  Texas,  323, 
6  S.  W.,  167 ;  Railway  Co.  v.  Mangum,  68  Texas,  342. 

2!  Wilson  v.  Adams,  15  Texas,  323. 

21  Robertson  v.  Ephraim,  18  Texas,  124. 


DILATORY   PLEAS.  361 

difference  between  pleas  based  on  these  different  matters,  still  the  decis- 
ion is  not  direct  authority  except  in  cases  where  venue  is  sought  to  be 
fixed  by  residence  of  the  defendant. 

In  Graves  v.  Bank,25  a  suit  begun  in  a  justice  court,  the  same  question 
that  was  decided  in  above  case  was  presented.  The  plea  suggested  that 
the  defendants  lived  in  a  different  justice  precinct  from  that  in  which 
the  suit  was  brought.  No  evidence  was  offered  on  the  question  of  resi- 
dence, and  judgment  on  the  merits  was  rendered  against  the  defendants. 
In  its  decision  the  Supreme  Court  uses  this  language : — "In  disposing  of 
this  assignment  it  would  probably  be  sufficient  to  say  that  it  does  not 
appear  that  any  evidence  was  offered  to  sustain  the  plea  of  privilege.  The 
mere  averment  of  facts  without  proof  of  them  is  insufficient  to  found 
judgment  upon." 

In  Hopson  v.  Caswell,2"  the  question  of  practice  arose  in  this  way: 
The  plaintiff  sued  in  Smith  County,  alleging  that  the  defendant's  resi- 
dence was  unknown  to  him  at  the  time  of  the  institution  of  the  suit. 
The  defendant  plead  in  abatement  that  when  the  suit  was  brought  he  re- 
sided in  Travis  County,  and  the  plaintiff  knew  this  fact  when  he  brought 
the  suit.  Evidence  as  to  the  fact  of  the  defendant's  residence  being  in 
Travis  County  when  the  suit  was  brought  was  offered  by  him,  but  no 
testimony  was  introduced  to  show  that  the  plaintiff  knew  this  fact.  The 
plaintiff  testified  that  he  did  not  know  where  the  defendant  resided 
when  the  suit  was  brought.  Discussing  the  matter  Judge  Finley,  after 
stating  the  issues  raised  by  the  plea,  says:  "It  is  not  enough  that  the 
alleged  ground  of  jurisdiction  is  denied  by  the  plea  in  abatement;  the 
plea  must  be  followed  up  and  sustained  by  proof,  or  it  will  be  unavail- 
ing. The  burden  of  sustaining  the  plea  was  on  the  defendant.  The 
•evidence  must  have  shown  that  the  jurisdictional  ground  relied  upon  did 
not  exist."  After  commenting  on  a  number  of  cases,  he  continues :  "In 
that  case  (Kutman  v.  Page,  3  Court  of  Appeals,  Willson,  164)  the 
court  said  that  it  was  not  aware  that  it  had  been  decided  whether  a 
plea  in  abatement  proved  itself,  but  expressed  the  opinion  that  it  only 
established  prima  facie  the  facts  stated  in  the  plea.  We  are  of  opinion 
that  it  only  raised  the  issue,  and  that  it  required  proof  to  sustain  it. 
The  cases  of  Eobertson  v.  Ephriam,  18  Texas,  124,  and  Graves  v. 
Bank,  77  Texas,  585,  sustain  this  contention.  See  also  1  Encyclopedia 
of  Pleading  and  Practice,  32,  where  it  is  said,  'the  burden  of  sustaining 
the  plea  rests  on  the  defendant.' '' 

These  cases  would  seem  to  settle  the  practice  that  the  burden  of  proof 
is  on  the  defendant  to  sustain  his  plea  in  abatement  when  the  fact  relied 
on  to  fix  venue  relates  to  the  defendant's  residence  or  the  plaintiff's 
knowledge  of  it. 

25  77  Texas,  555,  14  S.  W.,  103. 

28  Hopson  v.  Caswell,  13  Texas  Civ.  App.,  492. 


362  DEFENDANT'S  ORIGINAL  ANSWER. 

In  Blum  v.  Strong,27  suit  had  been  brought  in  the  district  court  of 
Galveston  County  by  Leon  &  H.  Blum  against  Strong,  and  attachment 
had  been  issued  from  that  court  and  sent  to  McClellan  County  and 
there  levied  by  the  constable  on  property  belonging  to  Strong.  Strong 
sued  the  constable  in  McClellan  County  and  joined  the  Blums  as  co- 
defendants,  their  residence  then  being  in  Galveston  County.  To  fix  venue 
against  them  the  plaintiff  averred  that  they  participated  in  the  unlawful 
and  oppressive  levy  in  McClellan  County.  The  Blums  plead  in  abate- 
ment their  privilege  of  being  sued  in  Galveston  County,  and  denied  any 
wrong  on  the  part  of  the  constable  and  any  participation  therein  by 
them.  They,  however,  did  not  allege  that  these  charges  against  them  were 
fraudulently  made  in  order  to  give  jurisdiction.  In  the  original  opinion 
the  Supreme  Court  held  that  such  allegations  were  essential,  and  that 
the  issue  of  "Jurisdiction"  as  it  was  called  could  not  be  raised  without 
such  averments.  Motion  for  rehearing  was  made  and  the  court  set 
aside  the  former  decision  and  held  that  the  plea  of  privilege  was  not  prop- 
erly before  the  court,  as  it  did  not  affirmatively  appear  from  the  record 
that  it  had  been  called  to  the  attention  of  the  district  court  before  the 
trial  on  the  merits. 

In  Hilliard  v.  Wilson,28  the  question  of  fraud  on  the  part  of  the 
plaintiff  in  alleging  local  wrongs  against  nonresident  defendants  in 
order  to  fix  venue  came  up  directly  for  decision.  The  court  held  that 
the  plea  need  not  aver  that  such  allegations  were  fraudulently  made,  but 
that  "the  right  to  maintain  a  suit  in  a  county  other  than  that  in  which 
the  statute  fixes  venue  must  depend*  on  the  existence  of  the  fact  or  facts 
which  constitute  an  exception  to  the  statute  and  not  upon  the  mere  aver- 
ment of  such  facts.  Where  the  jurisdiction  of  the  person  of  a  defendant 
is  claimed  under  some  exception  of  the  general  statute  of  venue,  and  he 
pleads  the  privilege  of  being  sued  in  the  county  of  his  domicile  as  pro- 
vided  by  that  statute  to  defeat  this  plea  and  deprive  him  of  that  right, 
we  think  the  facts  relied  on  should  not  only  be  alleged  but  proved." 

As  the  plaintiff  is  the  one  seeking  to  sustain  the  venue,  he  is  clearly 
the  one  interested  in  proving  the  exception,  and  hence  this  decision  puts 
the  burden  of  proof  on  him.  The  language  used  in  this  case  and  those 
cited  above  is  certainly  contradictory.  The  latter  case  might  possibly 
be  reconciled  with  Robertson  against  Ephriam,  and  with  Graves  against 
Bank,  on  the  theory  that  in  the  two  last  named  cases  venue  was  fixed 
by  the  alleged  residence  of  the  defendant,  which  is"  not  ordinarily  an.  issu- 
able  fact  and  consequently  not  one  as  to  which  the  plaintiff  would 
primarily  be  required  to  offer  proof,  while,  in  it,  the  averments  upon 
which  the  plaintiff  relied  to  give  venue,  were  of  matters  which  would 

27Bhim  v.  Strong,  71  Texas,  321,  6  S.  W..  167. 
28  Hilliard  v.  Wilson,  76  Texas,  180,  13  S.  W.,  25. 


PLEAS   IN   BAE.  363 

be  put  in  issue  by  the  general  denial  of  the  defendant,  and  on  which 
consequent!}',  the  plaintiff  would  be  required  to  offer  proof,  in  the  absence 
of  objection  to  the  venue;  but  this  theory  does  not  seem  equally  appli- 
cable to  the  case  of  Hopson  against  Caswell.  In  that  case  the  defendant 
was  sued  in  a  county  in  which  he  did  not  reside  and  venue  was  sought 
to  be  fixed  by  the  averment  that  the  place  of  his  residence  was  unknown 
to  the  plaintiff  at  the  time  the  suit  was  brought,  and  testimony  was 
offered  on  this  issue  by  both  parties,  and  it  was  distinctly  held  that 
the  burden  of  proof  was  on  the  defendant. 

The  better  doctrine  seems  to  be,  that  when  the  plaintiff  by  his  peti- 
tion makes  out  a  prima  facie  case  of  venue  in  the  court  in  which  the  suit 
is  brought,  to  entitle  the  defendant  to  abate  the  suit  on  the  ground 
of  improper  venue,  he  should  be  required  to  both,  plead  and  prove  the 
necessary  facts,  and  unless  he  does  so  the  suit  should  be  tried  upon  it& 
merits. 

On  the  other  hand,  the  defendant's  right  to  abate  the  suit  ought  not 
to  be  limited  to  cases  in  which  the  allegations  by  the  plaintiff,  showing 
venue,  are  made  fraudulently.  The  burden  of  pleading  and  proving 
facts  sufficient  to  abate  the  suit,  when  the  plaintiff's  petition  is  on  its 
face  sufficient  to  give  venue,  should  be  on  the  defendant,  but  when  he 
has  met  this  requirement,  the  good  faith  of  the  plaintiff  should  not  de- 
feat his  right. 


PLEAS  IN  BAR. 

Due  Order  of  Pleas  in  Bar. 

The  regular  order  here  is: 

1.  General  demurrers. 

2.  Special  demurrers. 

3.  General  denials. 

4.  Special  denials. 

5.  Pleas  in  confession  and  avoidance. 

6.  Estoppel. 

7.  Cross  action. 

Numbers  1  and  2  are  methods  of  joining  issues  of  law ;  numbers  3  and 
4  are  methods  of  joining  issues  of  fact ;  numbers  5,  6  and  7  set  up  new 
matters,  and  tender  issues  to  the  plaintiff, 

Demurrers. 

A  demurrer  at  common  law  iff  not  classed  as  a  plea  at  all,  but  a 
reason  given  for  not  pleading.  This  is  a  result  of  the  restricted  meaning 


364  DEFENDANT'S  OEIGINAL  ANSWER. 

of  the  term  plea  in  that  system,  that  is,  a  pleading  presenting  new  facts. 
It  is  of  little  moment  with  us  whether  it  be  classed  as  a  plea  or  not.  It 
is  a  matter  of  defense  interposed  in  the  defendant's  answer  in  bar  of  the 
plaintiff's  suit,  or  some  designated  devisable  portion  of  it,  and  a  favorable 
decision  and  a  final  judgment  on  the  issues  thus  raised  is  just  as  effective 
as  a  plea  of  res  adjudicata,  as  a  judgment  on  a  full  hearing  on  the 
merits  would  be.20  It  is  true  that  few  final  judgments  of  this  sort  are 
taken,  for  under  the  liberal  rules  as  to  amendments  the  plaintiff  usually 
takes  leave  to  amend,  and  makes  his  petition  conform  to  the  ruling  of 
the  court;  but  this  is  a  privilege  merely  and  not  compulsory,  and  if  he 
does  not  file  an  amendment  the  decision  against  him  on  the  demurrer  is 
just  as  effective  to  settle  the  matters  embraced  therein  as  any  other  that 
could  be  rendered. 

At  earty  common  law,  if  the  defendant  demurred,  and  the  case  was 
tried  on  that,  there  was  no  right  to  amend  by  the  plaintiff,  nor  to  plead 
over  on  the  facts  by  the  defendant.  If  the  demurrer  was  sustained, 
judgment  final  went  for  the  defendant  on  the  whole  case.  If  it  was  over- 
ruled, the  demurrer  was  considered  an  absolute  admission  of  the  truth 
of  the  facts  demurred  to,  and  the  judgment  was  rendered  against  the 
defendant  without  further  trial.  This  is  not  so  here.  If  the  demurrer 
is  sustained,  the  plaintiff  if  he  desires  has  leave  to  amend  and  conform 
his  pleading  to  the  ruling  of  the  court ;  if  the  demurrer  is  overruled,  the 
plaintiff  must  still  make  out  his  case  by  proof,  and  the  defendant  can 
interpose  every  objection  on  the  facts  as  to  their  admissibility,  truth,  and 
legal  effect,  that  he  could  if  he  had  not  demurred. 

A  general  demurrer  is  a  suggestion  to  the  court  that  the  facts  stated 
in  the  pleading  demurred  to,  if  true,  do  not  entitle  the  pleader  to  any  re- 
lief from  the  court.  This  does  not  raise  any  question  as  to  the  manner 
and  form  of  pleading,  but  only  as  to  its  substance,  and  if  upon  a  fair, 
reasonable  construction,  giving  to  all  ambiguities  the  reasonable  inter- 
pretation most  favorable  to  the  pleading,  there  appear  in  it  sufficient 
facts  to  show  a  legal  right  in  the  pleader,  the  general  demurrer  should 
be  overruled.30 

A  special  demurrer, — or  special  exception,  which  is  but  a  different 
name  for  the  same  thing — is  a  suggestion  that  the  matters  contained  in 
the  pleading,  in  the  manner  and  form  therein  set  out,  are  not  legally 
sufficient  to  entitle  the  party  to  the  action  asked  of  the  court,  specifying 
the  defects  in  form.  This  always  calls  in  question  not  only  the  legal 
sufficiency  of  the  substance  of  the  pleading,  but  also  the  form  in  which 

29Bomar  v.  Parker,   68  Texas,  435. 

80  Zacharie  v.  Bryan,  2  Texas,  274;  Lambeth  v.  Turner,  1  Texas,  364;  Holman 
v.  Criswell,  13  Texas.  38;  Williams  v.  Warnell,  28  Texas,  611;  Mayfield  v.  Av- 
eritt,  11  Texas,  140;  Junction  City  School  Incorporation  v.  Trustees,  81  Texas, 
152. 


PLEAS   IN   BAR.  365 

it  is  presented.  Hence,  it  is  said  that  a  special  demurrer  always  in- 
cludes a  general  demurrer;  or  that  a  general  demurrer  only  joins 
issue  as  to  the  substance  of  the  pleading  demurred  to,  but  a  special 
demurrer  joins  issue  both  as  to  the  substance  and  form,  and  as  to  the 
latter  it  must  point  out  the  defects.31 

The  rules  of  construction  applied  to  a  pleading,  in  considering  a 
special  demurrer,  are  different  from  those  applied  under  a  general 
demurrer,  and  that  reasonable  meaning  which  is  most  favorable  to  the 
demurrer  is  placed  on  it.  As  under  our  system  the  plaintiff  may  tender 
many  issues,  it  may  occur  that  some  of  these  may  be  subject  to  de- 
murrer and  others  not.  Hence  we  have  in  our  practice  the  privilege  of 
interposing  general  demurrers  to  designated  portions  of  the  petition.  If 
such  demurrer  is  sustained,  it  eliminates  from 'the  petition  such  parts 
of  it  as  may  be  insufficient.  If  there  remains  enoiigh  in  the  pleading 
to  properly  present  one  or  more  causes  of  action,  the  case  will  proceed 
to  trial  on  them.  When  the  facts  stated  by  the  plaintiff  show  the  cause 
of  action  sued  on  to  be  barred  by  any  of  the  numerous  statutes  of  limita- 
tion, this,  owing  to  our  statute,  can  not  be  availed  of  on  a  general  de- 
nrnrrer,  and  hence  the  defendant,  if  he  wishes  the  benefit  of  the  defense 
on  the  issues  of  law  must  especially  except  to  the  petition  setting  up  and 
making  the  defense  of  limitation.  This  he  can  do.32 


General  Denials. 

The  plaintiff  is  required  to  state  every  fact  essential  to  his  cause  of 
action  in  order  to  show  the  court  that  he  is  entitled  to  relief.  If  any 
one  of  such  essential  facts  be  untrue  he  is  not  entitled  to  recover.  When 
the  petition  is  good,  it  would  of  course  be  fatal  to  the  defendant's  inter- 
ests to  rely  entirely  on  a  demurrer,  and  it  becomes  necessary  to  join 
issTie  on  the  facts;  that  is,  to  file  some  pleading  which  denies  the  truth 
of  the  plaintiff's  pleading  and  requires  him  to  establish  his  case  by 
proof.  This  is  ordinarily  done  by  a  general  denial.  There  are  a  few 
facts  which  can  not  be  disputed  in  this  way.  They  are  those  enumer- 
ated in  the  statutes  requiring  certain  defensive  pleadings  to  be  sworn  to 
and  have  already  been  somewhat  considered,  and  they  will  be  taken  up 
again  in  concluding  portions  of  this  chapter.  With  these  exceptions, 
issue  is  joined  upon  every  material  fact  asserted  by  the  plaintiff  by  a 
general  denial.  The  first  effect  of  such  plea  is  to  put  the  plaintiff  upon 
proof  of  every  fact  essential  to  his  case.  The  evidence  must  cover 

81  Loggins  v.  Buck,  33  Texas,  113;  Hendrix  v.  Nunn,  46  Texas,  146;  Burleson 
V.  Hancock,  28  Texas,  82. 

82  Rev.  Stats.  1895,  art.  3371;  Swenson  v.  Walker,  3  Texas,  93;  Alston  v.  Rich- 
ardson, 51  Texas,  1;  Rucker  v.  Daily,  66  Texas,  284. 


366  DEFENDANT'S  ORIGINAL  ANSWER. 

-every  fact  which  is  necessary  to  make  out  the  plaintiff's  case,  for  it  is 
only  facts  that  are  both  plead  and  proven  that  can  be  considered  by  the 
court  in  determining  the  case.  All,  however,  that  is  required  of  the 
plaintiff  to  meet  such  pleading  is  to  introduce  testimony  making  out  a 
prima  facie  case.  He  does  not  under  it  have  to  anticipate  any  defense 
which  admits  such  case,  but  avoids  it  by  proof  of  other  facts.33 

The  next  inquiry  is,  what  evidence  can  the  defendant  give  under  a 
general  denial?  The  answer  is,  all  testimony  which  goes  to  disprove 
or  rebut  that  a  prima  facie  case  in  the  plaintiff's  behalf  ever  existed. 
Under  this  plea,  testimony  in  confession  and  avoidance,  that  is,  which  ad- 
mits that  the  plaintiff  once  had  a  cause  of  action,  but  that  it  has  been 
defeated  or  avoided  by  other  matters,  can  not  be  heard.  It  is  sometimes 
difficult  to  get  a  clear  -conception  of  the  difference  between  matter  in 
rebuttal  and  in  avoidance.  The  first  includes  everything  which  tends 
to  prove  that  there  never  was  a  prima  facie  cause  of  action  in  the  plain- 
tiff ;  the  latter  all  testimony  which  admits  the  existence  at  some  time  of  a 
prima  facie  case,  but  denies  its  present  existence  because  of  some  inde- 
pendent fact  or  facts  which  destroy  it.  Let  us  illustrate  with  a  case  of 
parol  contract.  The  plaintiff  sues  upon  a  parol  contract,  according  to 
the  terms  of  which  certain  things  are  to  be  done  by  him  before  his  right 
thereunder  should  accrue.  The  defendant  interposes  simply  a  general 
denial.  Here  the  plaintiff  is  required  to  prove  very  fact  going  to  show  a 
valid  contract  and  the  performance  by  him  of  all  its  conditions  which 
were  precedent  or  concurrent  with  the  vesting  of  his  right,  and  the  de- 
fendant may  introduce  any  evidence  to  show  that  no  such  contract  was 
ever  entered  into,  or  that  the  plaintiff  has  not  complied  with  the  condi- 
tions precedent  or  concurrent  upon  his  part,  for  such  testimony  would 
not  be  or  involve  an  admission  that  there  had  ever  been  any  liability  upon 
the  defendant's  part  actual  or  prima  facie,  but  under  the  general  denial 
the  defendant  could  not  prove  that  he  had  paid  the  amount  due  under  the 
contract,  for  this  would  confess  a  liability  existing  against  him  at  one 
time  and  seek  to  avoid  it  by  proof  of  its  subsequent  discharge  ;  nor  could 
he  offer  evidence  to  prove  that  the  contract  had  been  procured  by  fraud, 
for  a  fraudulent  contract  is  not  absolutely  void,  but  voidable  only  at 
the  instance  of  the  person  defrauded,  and  the  defense  of  fraud  therefore 
.admits  a  prima  facie  case  in  the  plaintiff  and  seeks  to  destroy  it. 

To  illustrate  further  by  a  case  of  tort:  The  plaintiff  sues  for  the 
conversion  of  personal  property  by  the  defendant.  The  defendant 
pleads  general  denial.  Here  the  plaintiff  must  prove  every  -fact  neces- 
sary to  show  his  right  as  against  the  defendant,  and  the  violation  of 
this  right  by  the  defendant  as  alleged  in  the  petition  and  the  injury  re- 
sulting therefrom,  and  unless  he  does  this  he  does  not  make  out  a  prima 


v.  Mitchell,  1  Texas,  443;  Guess  v.  Lubbock,  5  Texas,  535;  Altgelt  v. 
Emilienburg,  64  Texas,  150;  Willis  v.  Hudson,  63  Texas,  678. 


PLEAS   IN   BAR.  367 

facie  case;  and  likewise  the  defendant  can,  under  his  general  denial, 
controvert  and  disprove  each  and  every  fact  alleged  by  the  plaintiff  to 
be  true.  That  is,  he  can  show  by  any  competent  testimony  that  the 
plaintiff  did  not  own  the  property,  and  that  the  defendant  was  not  guilty 
of  its  conversion.  These  or  any  other  facts  which  constitute  a  part  of 
plaintiff's  cause  of  action  the  defendant  could  disprove,  and  in  so  doing 
would  show  that  he  never  had  at  any  time  been  liable  to  the  plaintiff 
on  the  matters  sued  upon ;  but  under  such  plea  he  could  not  prove  that 
he  had  had  a  settlement  with  plaintiff  and  paid  him  the  agreed  amount 
in  discharge  of  his  liability,  nor  could  he  avail  himself  of  limitation, 
nor  any  other  defense  which  admitted  that  he  once  was  liable  to  the 
plaintiff  but  was  now  discharged.34 

Care  must  be  taken  to  distinguish  between  the  general  denial  in  our 
practice  and  the  general  issue  at  common  law,  for  the  general  issue  is 
much  broader  in  its  effects,  and  frequently  under  it  matter  which  really 
confessed  and  avoided  the  cause  of  action  was  admissible,  while  this  is 
never  the  case  in  our  practice. 


Special  Denials. 

Ordinarily  a  special  denial  adds  nothing  to  the  force  of  a  general  de- 
nial. That  is,  if  the  defendant  has  denied  generally  all  the  material  al- 
legations in  the  plaintiff's  petition,  he  ordinarily  adds  nothing  to  his 
defense  by  selecting  one  or  more  of  the  facts  essential  to  the  plaintiff's 
case  and  denying  them  particularly.  This  does  not  require  any  more 
proof  by  the  plaintiff,  nor  relieve  the  defendant  from  any  burden  rest- 
ing upon  him.  There  are,  however,  several  issues  which  the  statute 
provides  can  not  be  joined  by  a  general  denial,  but  only  by  special  de- 
nial, duly  verified,  and  when  the  case  involves  one  of  these  the  general 
denial  without  a  special  denial  will  not  put  the  plaintiff  on  proof  of 
such  allegations,  and  in  every  instance  except  denial  of  consideration 
of  written  contract,  the  plea  must  be  verified.  So  the  rule  may  be 
stated  thus,  that  in  order  to  join  issue  on  any  of  the  matters  em- 
braced in  sections  8,  9,  and  11  under  article  1265,  or  under  article  3379, 
supra,  there  must  be  a  special  denial,  which  must  be  under  oath  in  all 
instances  except  failure  or  absence  of  consideration.  Sections  10  and 
12,  article  1265,  relate  to  matters  in  confession  of  plaintiff's  prima  facie 
case  and  its  avoidance  by  independent  facts,  and  are  not  here  under 
consideration.35 

34  Minis  v.  Mitchell,  1  Texas,  443;  Scarbrough  v.  Alcorn,  74  Texas,  3(JO;  Glascock 
v.  Hamilton.  62  Texas,  149;  T.  B.  Ins.  Co.  v.  Hutchins,  53  Texas,  61;  Willis  v. 
Hudson,  63  Texas,  678 ;  Moore  v.  Hazlewood,  67  Texas,  624. 

33  For  distinction  between  verification  in  failure  of  consideration  and  other  of 
these  defenses,  see  chapter  XII,  ante. 


368  DEFENDANT'S  ORIGINAL  ANSWER. 

In  addition  to  the  cases  given  above,  there  are  others  in  which  special 
denials  may  sometimes  be  used  profitably.  The  first  is  in  connection  with 
the  general  denial,  in  cases  in  which  the  pleader  desires  to  emphasize 
some  points  in  the  case  upon  which  he  thinks  his  adversary's  testimony 
will  be  especially  weak  or  his  own  especially  strong,  and  to  fix  these 
points  in  the  minds  of  the  judge  and  jury  as  the  controlling  facts  in 
the  case. '  The  second  is  cases  in  which  the  defendant  does  not  desire  to 
dispute  many  of  the  facts  alleged  by  the  plaintiff,  but  agrees  with  him 
that  these  are  true,  yet  differs  as  to  one  or  two  particular  facts  which  will 
control  the  case.  In  such  instances  it  is  frequently  proper  to  limit  the 
denials  in  the  defendant's  answer  to  the  particular  matters  which  he 
proposes  to  controvert,  and  to  especially  deny  these  and  afterwards  sets 
out  his  version  of  the  matter  as  to  these  particular  points  in  controversy. 
Often  the  scope  of  the  testimony  can  be  very  much  limited  by  this 
process,  and  the  investigation  narrowed  down  to  one  or  two  points 
which  always  tends  to  simplify  the  case  and  keep  down  the  costs  of  the 
litigation. 


Pleas  in  Confession  and  Avoidance. 

Next  in  due  order  of  presenting  the  defensive  matters  come  pleas  in 
confession  and  avoidance.  These,  as  the  term  implies,  are  based  upon 
the  idea  that  the  whole  or  some  particular  portion  of  the  plaintiff's  al- 
legations are  true,  but  on  account  of  some  other  facts  no  liability  really 
rests  upon  the  defendant  by  reason  thereof.  Such  a  pleading  is  not  a 
joinder  of  issue,  but  sets  up  new  matter  upon  which  issue  may  be  joined 
by  the  other  side.  It  is  immaterial  what  the  particular  nature  of  this 
matter  may  be,  for  every  defense  which  in  legal  effect  admits  that  the 
plaintiff  once  had  a  prima  facie  case,  and  which  seeks  to  avoid  or  destroy 
such  prima  facie  case  by  independent  facts  transpiring  prior  to,  concur- 
rently with,  or  subsequently  to,  the  facts  constituting  the  plaintiff's 
cause  of  action,  must  be  presented  to  the  court  in  this  way,  or  no  testi- 
mony can  properly  be  heard  or  considered  in  its  support.36 

In  pleas  of  this  kind  at  common  law,  the  pleader  was  required  to  ad- 
mit the  facts  absolutely  and  then  to  avoid  the  effect  of  this  admission 
by  the  independent  facts  alleged.  This  is  the  better  form  for  pleading 
under  our  practice,  but  it  can  scarcely  be  said  to  be  definitely  estab- 
lished as  a  rule,  for  it  is  not  infrequently  the  case  with  us  that  pleas  in 


30  See  cases  in  note  — ,  supra;  also  Railway  Co.  v.  Sheider,  88  Texas,  153;  Hor- 
ton  v.  Crawford,  10  Texas,  382 ;  Flanagan  v.  Pearson,  42  Texas,  1 ;  Smith  v.  Fly, 
24  Texas,  345;  Phillipowsky  v.  Spencer,  63  Texas,  604;  Hays  v.  Bonner,  14  Texas, 
629;  Moore  v.  Hazlewood,  67  Texas,  624;  McCamant  v.  Batsell,  59  Texas,  363; 
Fowler  v.  Willis,  4  Texas,  48;  Hamilton-Brown  Shoe  Co.  v.  Mayo,  8  Texas  Civ. 
App.,  164. 


PLEAS  IN   BAB.  369 

confession  and  avoidance  will  bo  introduced  by  a  denial  of  the  facts, 
which  is  followed  by  the  statement  that  if  the  court  shall  nevertheless 
find  the  facts  denied  to  be  as  contended  by  the  plaintiff,  still  the  de- 
fendant would  not  be  liable  because  of  the  existence  of  the  facts  which 
are  relied  upon  in  avoidance.  This,  however,  is  not  the  best  form. 

Great  care  should  be  exercised  in  setting  out  the  facts  in  avoidance, 
for  as  this  is  the  introduction  of  new  matter  into  the  case  every  fact  must 
be  stated  which  it  is  desired  to  prove.  Fullness  is  as  essential  here  as 
in  the  plaintiff's  petition. 

It  has  been  frequently  decided  under  our  statute  permitting  the  de- 
fendant to  make  different  defenses  that  a  plea  in  confession  and  avoid- 
ance, even  though  under  the  old  common  law  form  of  an  absolute  ad- 
mission, does  not  limit  the  effect  of  a  general  or  special  denial  preceding 
it  in  the  answer,  and  that  the  plaintiff  must  be  prepared  to  overcome 
ihe  general  denial  by  proof  independent  of  the  admission  contained  in  the 
confession  and  avoidance.  To  hold  otherwise  would  be  to  deny  to  the 
defendant  the  practical  advantage  of  the  statute.37 

The  most  frequent  instances  of  this  plea  in  suits  on  contract  are  pleas 
of  payment  or  other  discharge  of  contracts  once  binding  on  the  party, 
of  fraud,  of  duress,  of  want  or  failure  of  consideration,  of  limitation,  of 
incapacity  of  parties,  of  breach  of  conditions  subsequent,  of  usury,  and 
in  suits  on  torts,  pleas  of  satisfaction,  of  contributory  negligence,  of  the 
existence  of  special  relations  between  the  parties  justifying  the  de- 
fendant's conduct,  and  of  limitation.  Want  or  failure  of  consideration 
and  usury  are  required  by  the  statute,  article  1265,  to  be  verified. 

It  is  not  necessary  to  consider  each  of  these  several  defenses  separately, 
but  the  pleader  should  be  very  careful  to  embody  in  his  answer  every  fact 
legally  essential  to  the  one  interposed.  To  illustrate :  in  setting  up  fraud 
it  is  not  sufficient  to  charge  that  the  contract  sued  upon  by  the  plaintiff 
was  secured  unlawful!}'  and  fraudulently,  but  the  very  facts  constituting 
the  fraud  must  be  plead  with  such  particularity  and  detail  as  to  enable 
the  court  to  determine  from  the  pleading  that  all  the  elements  of  fraud 
were  present  in  the  transaction;  this  is  certainly  true  when  a  special 
exception  is  interposed,  and  the  great  weight  of  authority  holds  it  to  be 
true  in  cases  where  the  point  is  raised  by  general  exception  or  even  by 
objection  to  testimony.  The  same  principles  apply  as  to  each  of  the 
other  defenses  which  are  required  to  be  plead  in  this  way. 

Defense  of  Limitation. 

Pleas  of  the  statute  of  limitation  require  some  special  treatment. 
These  are  special  pleas  in  the  nature  of  confession  and  avoidance.  They 

37  Duncan  v.  Magette,  25  Texas,  245. 
24 — Pleading 


370  DEFENDANT'S  ORIGINAL  ANSWER. 

say,  notwithstanding,  the  plaintiff  may  once  have  had  a  cause  of  action 
on  the  matter  sued  on,  his  rights  have  been  lost  by  lapse  of  time,  coupled 
with  the  other  necessary  facts,  if  any  be  required  in  the  particular  case. 
This  defense  can  never  be  considered  by  the  court  unless  it  is  specially 
plead  by  the  defendant.38 

Where  the  facts  entitling  the  defendant  to  the  protection  of  the  stat- 
ute appear  on  the  plaintiff's  petition,  it  may  be  interposed  by  special 
demurrer  setting  it  up;39  when  the  facts  do  not  so  appear,  the  defendant 
must  set  them  up  specifically  in  his  answer.  In  doing  this  he  must  be 
very  careful  to  aver  every  fact  entitling  him  to  the  bar  of  the  statute. 
The  extreme  certainty  required  in  a  plea  in  abatement  is  not  necessary, 
still  he  must  clearly  and  fully  present  the  facts  relied  on  and  claim,  the 
benefit  of  the  particular  statute  or  statutes  applicable  thereto.40 

If  the  defendant  pleads  facts  entitling  him  to  the  benefit  of  the 
statute  and  the  plaintiff  desires  to  avoid  the  bar  of  his  rights  by  proof  of 
facts  constituting  disability  on  his  part  or  other  reasons  why  the  statute 
has  not  run  against  him,  he  must  specially  plead  these  matters  in  avoid- 
ance by  a  supplemental  petition,  unless  they  fully  appear  in  his  former 
pleadings.41 

It  is  not  sufficient  for  the  plaintiff's  pleadings  to  show  that  he  or  she 
was  under  disability  at  the  time  the  action  was  begun,  but  it  must  appear 
that  the  disability  existed  at  such  time  and  under  such  circumstances  as 
to  prevent  the  bar  before  suit  was  brought. 


Pleas  of  Estoppel. 

Closely  related  to  confession  and  avoidance  are  defenses  based  upon 
estoppel.  Such  defenses  are  contentions  by  the  defendant  that  the  plain- 
tiff by  his  own  conduct,  or  that  of  some  one  under  whom  he  holds,  is 
cut  off  from  inquiring  into  and  asserting  the  real  facts  with  reference  to 
the  matter  before  the  court,  and  must  submit  to  have  his  legal  rights 
determined  upon  a  basis  of  fact,  which  by  the  words  or  conduct  of  him- 
self or  of  those  under  whom  he  claims,  the  defendant  has  been  reasona- 
bly lead  to  believe  to  be  true. 

Such  a  plea  does  not  admit  the  truth  of  the  plaintiff's  contention,  but 
only  says  that,  whatever  the  real  truth  may  be,  the  plaintiff  or  some  one 

38  Rev.  Stats.   1895,  art.  3371. 

39  Coles 
Wheat,  70 

29  S  W.,  662;  Rucker  v.  Bailey,  66  Texas,  287,  1  S.  W.,  316. 


v.  Kelsey,  2  Texas,  554;  Lewis  v.  Alexander,  51  Texas,  578;  Gathright  v. 
I  Texas,  742,  9  S.  W.,  76;  Water  Co.  v.  Dillard,  9  Texas  Civ.  App.,  667. 
662;  Rucker  v.  Bailey,  66  Texas,  287,  1  S.  W.,  316. 

^Duggan  v.  Cole,  2  Texas,  381;  Cunningham  v.  Frandtzen,  26  Texas,  34;  Rail- 
way Co.  v.  Gay,  88  Texas,  116;  Gillis  v.  Rosenheimer,  64  Texas,  243;  Hendricks 
v.  Sneideker,  30  Texas,  297. 

41  Harvey  v.  Cummings,  68  Texas.  599;  Lewis  v.  Terrell,  7  Texas  Civ.  App.,  314. 


CROSS-ACTION.  371 

for  whose  conduct  he  is  legally  responsible  has  induced  the  defendant  to 
believe  the  matters  set  out  in  the  plea  to  be  true,  and  has  influenced  him 
by  such  belief  to  act  in  such  a  way  as  to  injure  defendant,  if  the  plain- 
tiff should  now  be  permitted  to  show  the  plea  to  be  false,  and  that  there- 
fore in  determining  their  respective  rights  such  facts  must  be  conclu- 
sively taken  to  be  true. 

It  is  apparent  that  such  a  plea  is  a  tender  of  new  issues.  This  Defense 
was  formerly  looked  upon  with  great  disfavor,  but  this  opposition  has 
very  much  decreased  in  later  years.  Defenses  of  this  kind  are  required 
lo  be  plead  fully  and  specifically,  charging  by  direct  averment  every  fact 
necessary  to  constitute  the  estoppel  relied  upon.42 


CROSS-ACTION. 

The  preceding  heads  cover  the  matters  which,  strictly  speaking,  are 
defensive,  and  if  the  transactions  between  men  were  single  the  defendant 
need  never  go  beyond  them  in  setting  out  the  case.  Very  frequently, 
however,  the  business  affairs  between  the  same  persons  cover  numerous 
transactions  more  or  less  connected  with  each  other,  and  many  times 
there  are  transactions  between  the  same  persons  entirely  disconnected 
and  having  no  reference  or  relation  whatever  to  each  other.  In  cases  of 
these  kinds  it  becomes  necessary  for  the  defendant  in  setting  out  his  case 
to  go  further  than  matters  of  denial,  confession  and  avoidance,  and  es- 
toppel of  the  plaintiff's  case,  and  bring  before  the  court  such  other  trans- 
actions or  matters  as  ought  to  be  considered  by  it  in  determining  the 
relative  rights  and  duties  of  the  parties. 

These  complications  of  business  affairs  are  not  peculiar  to  any  one 
place  or  time,  but  exist  in  all  civilized  and  commercial  communities,  and 
every  system  of  jurisprudence  must  recognize  and  make  provision  for 
them  according  to  the  special  circumstances  and  to  the  judgment  and 
wisdom  of  the  particular  law-makers.  The  civil  law  dealt  with  them 
under  the  heads  of  compensation  and  reconvention ;  the  common  law 
uses  the  terms  discount  and  set-off ;  and  equity  uses  the  common  law 
terms,  and  also  cross-action  and  counterclaim.  Each  of  these  in  their 
several  systems  has  different  shades  of  meaning,  and  while  not  always 
used  with  accuracy,  the  general  significance  of  the  terms  is  fairly  kept 
in  mind. 

Our  Texas  system  is  here,  as  in  so  many  other  respects,  an  adaptation 
and  combination  of  the  common  and  civil  law  ideas.  As  early  as  1840 
the  Congress  of  the  Republic  passed  a  law  in  the  following  language : 

42  Banking  Co.  v.  Hutchins,  53  Texas,  68 ;  Scarbrough  v.  Alcorn,  74  Texas,  360, 
12  S.  W.,  72;  Burleson  v.  Burleson,  28  Texas,  416;  Mayer  v.  Ramsey,  46  Texas, 
375 ;  Peters  v.  Clements,  52  Texas,  143. 


372  DEFENDANT'S  ORIGINAL  ANSWER. 

"AN  ACT 
"ALLOWING  DISCOUNTS  AND  SET-OFFS. 

"Sec.  1.  Be  it  enacted  by  the  Senate  and  House  of  Kepresentatives 
of  the  Eepublic  of  Texas,  in  Congress  assembled,  that  when  any  suit  shall 
be  commenced  and  prosecuted,  in  any  court  within  this  Eepublic,  for  any 
debt  due  by  judgment,  bond,  bill,  or  otherwise,  the  defendant  shall  have 
"liberty,  upon  trial  thereof,  to  make  all  the  discounts  he  can  against  such 
debt ;  and  upon  proof  thereof,  the  same  shall  be  allowed  in  court. 

"Sec.  2.  Be  it  further  enacted,  That  in  every  action  in  which  a  defend- 
ant shall  desire  to  prove  any  payment  or  set-off,  he  shall  file,  with  his 
plea,  an  account,  stating  distinctly  the  nature  of  such  payment  or  set-off, 
and  the  several  items  thereof ;  and  on  failure  to  do  so,  he  shall  not  be  en- 
titled to  prove  before  the  jury  such  payment  or  set-off,  unless  the  same 
be  so  plainly  and  particularly  described  in  the  plea  as  to  give  the  plaintiff 
full  notice  of  the  character  thereof. 

"Sec.  3.  Be  it  further  enacted,  That  no  defendant  shall  be  allowed  to 
set-off  any  discount  or  demand  against  the  plaintiff's  cause  of  action, 
which  he  ma}r  have  become  entitled  to,  or  procured,  after  suit  instituted, 
so  as  to  defeat  the  action,  and  deprive  the  plaintiff  of  his  costs  of  suit; 
provided,  that  the  defendant  can,  in  every  case,  plead  any  legal  discounts 
or  set-offs  which  he  may  have  up  to  the  time  of  making  his  defense  ac- 
cording to  the  rules  of  pleading;  but  the  court  shall,  in  all  cases,  when 
it  appears  that  the  defendant's  discounts  or  set-offs  were  obtained  after 
the  institution  of  suit,  give  judgment  for  the  amount  which  is  proved  to 
be  actually  due  the  plaintiff  (if  any  there  be),  together  with  the  costs  of 
suit  expended  in  that  behalf. 

"Sec.  4.  Be  it  further  enacted,  That  whenever  any  plaintiff  may  in- 
stitute his  suit  for,  and  establish  a  demand  in  any  court  having  jurisdic- 
tion of  the  same,  and  his  claim  be  reduced  by  set-off,  to  an  amount  not 
within  the  jurisdiction  of  the  court,  judgment  shall  still  be  given  for  the 
amount  due  the  plaintiff,  and  for  costs  of  suit ;  should  the  set-off  of  the1 
defendant  exceed  the  amount  established  by  the  plaintiff,  then  judgment 
shall  be  given  in  favor  of  the  defendant  for  the  amount  that  his  claim 
may  exceed  that  of  the  plaintiff,  but  the  plaintiff  shall  recover  the  costs 
of  the  suit;  but  should  the  claim  of  the  plaintiff  be  reduced  to  a  sum  not 
within  the  jurisdiction  of  the  court,  by  payment,  then  judgment  shall  be 
given  in  favor  of  the  plaintiff  for  the  balance  due;  but  the  defendant 
shall  recover  the  costs  of  the  suit;  and  when  the  defendant  may  have  a 
claim  against  the  plaintiff,  similar  in  its  nature  (but  they  need  not  be  of 
the  same  degree)  to  that  of  the  plaintiff,  he  shall  be  permitted  to  file  in 
liis  answer  a  plea  of  reconvention,  setting  forth  the  amount  due  him, 
and  judgment  shall  be  given  in  favor  of  that  party  who  may  establish 
the  largest  claim,  for  the  excess  of  his  claim  over  that  of  his  opponent, 
and  for  costs. 


CROSS-ACTION.  373 

"Sec.  5.  Be  it  further  enacted,  That  if  the  plaintiff's  cause  of  action 
be  brought  on  a  claim  for  unliquidated  or  uncertain  damages,  founded  on 
a  tort  or  breach  of  covenant,  the  defendant  shall  not  be  permitted  to  set 
off  or  discount  any  debt  due  him  by  the  plaintiff ;  and  if  the  suit  be 
founded  on  a  certain  demand,  the  defendant  shall  not  be  permitted  to 
eet  off  unliquidated  or  uncertain  damages,  founded  .on  a  tort  or  breach 
of  covenant,  on  the  part  of  the  plaintiff." 

This  act  used  both  common  law  and  civil  law  terms.  Its  provisions  are 
not  entirely  consistent,  and  the  courts  encountered  some  difficulty  In 
placing  upon  it  the  proper  construction.  It  remained,  however,  un- 
amended  until  April  17,  18GO,  when  the  amendment  of  section  4,  passed 
earlier  in  the  year,  took  effect.  This  made  no  change  in  the  theory  of 
the  law,  but  only  regulated  costs  under  some  conditions. 

No  other  action  by  the  Legislature  was  taken  until  the  revision  of  the 
statute  in  1879,  when  the  present  act  was  adopted.  It  is  in  these  words: 

"Article  750.  Whenever  any  suit  shall  be  brought  for  the  recovery 
of  any  debt  due  by  judgment,  bond,  bill,  or  otherwise,  the  defendant  shall 
be  permitted  to  plead  therein  any  counterclaim  which  he  may  have 
against  the  plaintiff,  subject  to  such  limitations  as  may  be  prescribed  by 
law. 

"Art.  751.  The  plea  setting  up  such  counterclaims  shall  state  dis- 
tinctly the  nature  and  the  several  items  thereof,  and  shall  conform  to  the 
ordinary  rules  of  pleading. 

"Art.  752.  On  the  trial  of  such  issue,  if  the  defendant  shall  establish  a 
demand  against  the  plaintiff  exceeding  that  established  against  him  by 
the  plaintiff,  the  court  shall  render  judgment  for  the  defendant  for  such 
excess. 

"Art.  753.  Whenever  a  counterclaim  is  pleaded  under  the  provisions 
of  this  chapter,  the  party  in  whose  favor  final  judgment  is  rendered 
shall  also  recover  his  costs,  unless  it  should  be  made  to  appear  on  the  trial 
that  the  counterclaim  of  the  defendant  was  acquired  after  the  commence- 
ment of  the  suit,  in  which  case,  if  the  plaintiff  establishes  a  cause  of  ac- 
tion existing  at  the  commencement  of  the  suit,  he  shall  recover  his  costs. 

"Art.  754.  If  the  plaintiff's  cause  of  action  be  a  claim  for  unliquidated 
or  uncertain  damages,  founded  on  a  tort  or  breach  of  covenant,  the  de- 
fendant will  not  be  permitted  to  set  off  any  debt  due  him  by  the  plaintiff; 
and  if  the  suit  be  founded  on  a  certain  demand,  the  defendant  shall  not 
be  permitted  to  set  off  unliquidated  or  uncertain  damages  founded  on  a 
tort  or  breach  of  covenant  on  the  part  of  the  plaintiff. 

"Art.  755.  Nothing  in  the  preceding  article  shall  be  so  construed  as 
to  prohibit  the  defendant  from  pleading  in  set-off  any  counterclaim 
founded  on  a  cause  of  action  arising  out  of,  or  incident  to,  or  connected 
with,  the  plaintiff's  cause  of  action." 

As  suggested  above,  our  statutes  employ  both  common  law  and  civil 


374  DEFENDANT'S  ORIGINAL  ANSWER. 

law  terms,  and  there  is  a  lack  of  technical  precision  in  their  use  which 
in  a  great  measure  accounts  for  the  uncertainty  in  the  law  on  this  sub- 
ject. We  will  not  attempt  to  trace  the  different  meanings  given  to  these 
terms,  but  will  seek  to  present  the  controlling  doctrines  without  reference 
to  technicalities. 

First  it  should  be  observed  that  the  right  to  set  off  one  claim  against 
another  was  recognized  by  the  Spanish  civil  law  prior  to  any  Texas  leg- 
islation on  this  subject,  and  the  statutes  may  therefore  be  considered 
rather  as  a  regulation  of  pre-existing  rights  than  the  creation  of  new 
ones.43 

.  Again  it  must  be  borne  in  mind  that  these  statutes  do  not  in  terms 
apply  to  all  cases  of  cross  action,  but  only  to  those  in  which  both  de- 
mands— that  by  the  plaintiff  and  that  by  the  defendant — are  for  obliga- 
tions in  personam.  Cases  in  which  the  right  or  rights  asserted  are  in  rem 
are  not  within  the  language  of  the  statutes,  though  they  are  affected  by 
them  by  analogy. 


Claims  Embraced  in  the  Statutes. 

We  will  consider  first  the  cases  which  come  strictly  within  the  statutes, 
and  later  those  in  the  other  class. 

Claims  in  personam — that  is,  demands  for  money,  which  may  be  pre- 
sented to  the  court  for  consideration  in  opposition  to  each  other  in  the 
eame  case — may  be  divided  into  five  groups: 

First.  Those  which  the  law  applies  to  each  other  upon  the  accrual  of 
the  several  claims,  and  which  without  any  agreement  of  the  parties 
mutually  cancel  and  destroy  each  other  to  the  extent  of  the  smaller. 

Second.  Those  which  have  no  connection  in  themselves  or  by  opera- 
tion of  law.  but  which  are  applied  to  each  other  by  mutual  agreement  of 
the  parties.  In  these  cases  the  application  of  the  claims  to  each  other 
and  the  discharge  of  the  smaller  and  credit  pro  tanto  on  the  larger  takes 
place  at  the  time  fixed  by  the  agreement. 

Third.  Those  entirely  disconnected  in  themselves  but  which  are  of 
the  same  kind,  and  on  this  account  may  be  applied  to  each  other  by  the 
court  at  the  instance  of  either  party  to  the  suit. 

Fourth.  Those  not  of  the  same  kind,  and  hence  not  capable  of  being 
considered  together  under  the  rules  applicable  to  the  third  group,  but 
which  nevertheless  are  so  connected  in  origin  or  nature  that  they  may  be 
applied  one  to  the  other  by  the  court  in  the  progress  of  the  trial. 

Fifth.     Those  which  can  not  be  considered  together. 

**  Egery  v.  Power,  5  Texas,  501. 


CROSS-ACTION.  375 

Group  One.     Claims  Applied  to  Each  Other  by  Law. 

The  civil  law,  under  the  designation  of  "Compensation/'  recognized  the 
principle  of  merger  by  law  to  a  much  greater  extent  than  it  has  ever  been 
in  Texas  since  the  Act  of  1840.  These  rules  of  the  civil  law  were 
exhaustively  discussed  in  several  of  the  early  Texas  cases,  and  were  de- 
clared inapplicable  except  in  cases  of  mutual  accounts  whether  between 
merchants  and  merchants  or  between  persons  not  merchants.44 

The  rule  was  expressly  denied  with  regard  to  promissory  notes,  and 
has  never  been  extended  beyond  the  two  classes  of  claims  above  men- 
tioned.45 

Group  Two.     Claims  Applied  to  Each  Other  by  Agreement. 

There  is  no  difficulty  as  to  the  law  applicable  to  this  class  of  claims.  If 
the  parties  have  really  agreed  that  the  demands  shall  be  applied  to  each 
other,  canceling  the  less  and  crediting  the  larger,  there  can  be  no  legal 
objection  to  such  agreement  and  it  will  be  enforced  as  any  other  con- 
tract; the  holder  of  the  less  claim  can  not  recover  upon  it,  and  the 
holder  of  the  larger  can  only  recover  judgment  for  the  balance.  The 
facts  as  to  such  agreement  may  be  and  often  are  disputed,  and  much 
trouble  may  arise  in  determining  them,  but  the  legal  rules  are  simple. 

Group   Three.     Claims   Disconnected   but   Similar. 

This  group  embraces  claims  entirely  disconnected  in  themselves,  and 
which  have  not  been  applied  to  each  other  by  law  as  in  the  first 
group  or  by  agreement  as  in  the  second,  but  which  nevertheless  the  de- 
fendant desires  to  have  considered  together.  With  reference  to  these 
claims  the  statutes  are  more  specific  and  must  be  carefiilly  considered. 

The  first  section  secures  to  a  defendant  sued  for  any  kind  of  debt 
the  privilege  of  setting  up  any  counterclaim  which  he  may  have  against 
the  plaintiff,  unless  there  be  some  legal  rule  to  the  contrary  in  the  partic- 
ular case;  the  second  section  prescribes  the  manner  of  pleading  a 
counterclaim;  the  third  section  authorizes  rendering  judgment  for  the 
party  having  the  larger  claim  for  the  excess;  the  fourth  section  regulates 
costs ;  the  fifth  contains  the  statutory  limitations  on  the  right  guaranteed 
by  the  first;  and  the  sixth  sets  out  the  exceptions  to  the  limitations 
announced  in  the  fifth. 

The  result  of  the  statutes  and  decisions  is:  that  to  entitle  two 
disconnected  claims  to  be  considered  together  they  must  both  be  due  on 

"Holiman  v.  Rogers,  G  Texas,  91:  Hall  v.  Hodge,  2  Texas,  324. 

"Holiman  v.  Rogers,  supra;  Campbell  v.  Park,  11  Texas  Crv.  App.,  455,  33 
S.  W.,  754. 


376  DEFENDANT'S  ORIGINAL  ANSWER. 

contract — that  is,  grow  out  of  the  breach  of  contract  obligation;46  the 
statute  does  not  cover  disconnected  claims  for  damage  for  tort.47 

Both  claims  must  exist  between  the  same  parties  and  in  the  same 
capacity;48  he  who  is  sole  creditor  in  the  one  must  be  sole  debtor  in  the 
other,  and  all  of  those  that  are  joint  creditors  in  the  one  must  be  joint 
debtors  in  the  other;  but  if  one  of  the  parties  is  insolvent  this  last  re- 
quirement is  relaxed  and  the  counterclaim  permitted.40 

As  there  has  been  no  application  of  these  claims  the  one  to  the  other 
previous  to  the  suit,  either  by  the  action  of  the  law  or  of  the  parties,  they 
must  both  have  been  valid  subsisting  claims  at  the  time  the  litigation 
begun,  or  the  counterclaim  must  have  arisen  subsequent  to  the  litiga- 
tion; and  in  either  event,  they  must  each  be  a  valid  subsisting  and  en- 
foroible  legal  claim  at  the  time  the  court  is  called  on  to  make  the  appli- 
cation of  the  one  to  the  other. 

If  all  these  conditions  exist,  the  defendant  may  plead  his  demand  in 
counterclaim  against  the  plaintiff  and  obtain  credit  therefor,  if  it  be  the 
less,  or  judgment  for  the  excess  if  it  be  the  greater,  the  costs  in  the  latter 
case  to  be  regulated  by  the  statute ;  if  any  one  of  these  facts  is  wanting, 
the  counterclaim  will  not  be  permitted. 

Before  leaving  this  group,  it  may  be  well  to  present  the  matter  nega- 
tively. Disconnected  claims,  one  for  liquidated  and  the  other  for  un- 
liquidated demands ;  such  claims  based  one  on  breach  of  contract  and  the 
other  on  tort ; 50  or  claims  arising  from  different  torts,51  can  not  be  offset 
one  against  the  other.  This  is  not  affected  by  the  insolvency  of  either  of 
the  parties.52 

"El  Paso  Nat.  Bank.  v.  Fuchs,  89  Texas,  197,  34  S.  W.,  204;  McCarty  v. 
Squyres,  34  S.  W.,  350;  Snelling  v.  Kocrner,  27  S.  W.,  887;  Bank  v.  Lynch,  6 
Texas  Civ.  App.,  591;  June  v.  Brubaker,  5  Texas  Civ.  App.,  79;  Jones  v.  Hunt,  74 
Texas,  657,  12  S.  W.,  832. 

47  Hart  v.  Davis,  21  Texas,  412;  Shook  v.  Peters,  59  Texas,  395;  Smith  v.  Bates, 
80  Texas,  242,  27  S.  W.,  1044;  Rev.  Stats.  1895,  art.  754;  cases  cited  supra,  note 
— ;  Bodman  v.  Harris,  20  Texas,  33;  Sanders  v.  Bridges,  67  Texas,  94,  2  S.  W., 
663. 

"Hubby  v.  Camplin,  22  Texas,  583;  Guthrie  v.  Guthrie,  17  Texas,  542;  Atchison 
v.  Smith,  25  Texas,  230;  Traders'  Nat.  Bank  v.  Cresson,  75  Texas,  299,  12  S.  W., 
819. 

49  Allbright  v.  Aldrich,  2  Texas,  166;  Castro  v.  Gentilly,  11  Texas,  28;  Hamilton 
v.  Van  Hook,  26  Texas,  306 ;  Haley  v.  Cusenbary,  30  S.  W.,  587. 

50  Duncan  v.  Magette,  25  Texas,  257;   Rogers  v.  Watson,  81  Texas,  404,  17  S. 
W.,  29;  Parks  v.  Dial,  56  Texas,  263;   Riddle  v.  McKinney,  67  Texas,  29,  2  S. 
W.,  748. 

81  Hart  v.  Davis,  21  Texas,  412;  Shook  v.  Peters,  59  Texas,  395;  Smith  v.  Bates, 
80  Texas,  242,  27  S.  W.,  1044, 

02  Duncan  v.  Magette,  supra. 


CEOSS-ACTION.  -  377 

Group  Four.     'Claims  Dissimilar  but  Connected. 

The  fourth  group  of  claims  is  especialty  provided  for  in  the  last  clause 
of  the  statute.  Its  present  form  is  not  identical  with  either  the  Act  of 
1840  or  1860,  but  it  embodies  the  construction  placed  on  the  former  acts 
by  the  court.53 

As  it  is  not  entirely  clear  just  what  connection  between  the  claims  the 
statute  requires,  it  will  be  advisable  to  review  some  of  the  decisions. 

Walcott  v.  Hendrick54  is  a  suit  in  which  the  plaintiff  sued  the  de- 
fendant for  liquidated  debt  and  had  an  attachment  issued  and  levied 
on  the  property  of  the  defendant.  The  defendant  claimed  that  the 
attachment  was  wrongfully  procured,  and  sought  by  cross-action  to 
recover  the  damages  resulting  therefrom.  Exception  was  filed  to  this 
plea  on  ground  that  the  plaintiff's  suit  was  on  a  liquidated  demand 
based  on  contract,  and  the  damages  sought  by  defendant  were  un- 
liquidated and  for  tort.  The  court  considered  the  question  very  care- 
fully, and  comparing  the  several  clauses  of  the  statute  and  reviewing 
civil  and  common  law  authorities,  arrived  at  the  conclusion  that  the 
statute  construed  as  a  whole  allowed  liquidated  claims  to  be  set  up 
against  each  other ;  that  as  a  general  rule  it  prohibited  the  consideration 
of  a  liquidated  claim  against  an  unliquidated  one,  but  if  the  demand 
sought  to  be  adjudicated  by  the  defendant  was  necessarily  connected 
with  and  incident  to  the  suit  as  brought  by  the  plaintiff,  it  was  a 
proper  matter  of  cross-action  whether  liquidated  or  unliquidated, — 
and,  applying  these  general  principles  to  the  case  in  hand,  the  court 
held  the  plea  for  damages  proper. 

The  case  of  Sterrett  v.  City  of  Houston55  presents  the  question  in  a 
very  interesting  way.  The  city  was  at  that  time  (1855)  incorporated 
under  a  law  of  the  Eepublic  of  Texas.  The ,  charter  conferred  the 
power  to  collect  certain  public  dues  as  wharfage,  and  required  the  ex- 
penditure of  the  money  in  keeping  Buffalo  Bayou  open  and  in  proper 
condition  for  navigation.  These  dues  had  been  collected  for  many 
years,  but  had  not  been  applied  to  the  improvement  of  the  bayou.  Ster- 
rett owned  a  vessel  which  he  operated  on  the  bayou.  His  boat  was 
injured  by  obstructions  in  the  bayou,  which  the  city  could  have 
removed  by  use  of  the  money  collected  for  that  purpose.  The  city 
sued  Sterrett  for  the  wharfage  charges  due  from  him ;  he  plead  in  cross- 
action  the  damages  sustained  by  injury  to  his  boat.  The  lower  court 
struck  out  the  cross-action.  In  the  higher  court  this  was  held  error,  and 
the  judgment  was  reversed. 

53  Scalf  v.  Tompkins,  61  Texas,  479. 

"  Walcott  v.  Hendrick,  6  Texas,  405,  1851. 

55  Sterrett  v.  City  of  Houston,  14  Texas,  153,  1855. 


378  DEFENDANT'S  ORIGINAL  ANSWER. 

In  Wiley  v.  Traiwick,06  suit  had  been  brought  in  Louisiana  on  a  note 
and  attachment  issued  and  .goods  of  the  defendant  seized  and  kept;  the 
case  was  dismissed  without  restoration  of  the  goods,  and  before  defend- 
ant could  plead  in  cross-action.  Subsequently  the  same  plaintiff  sued 
the  same  defendant  in  a  Texas  court  on  the  same  cause  of  action,  and 
the  defendant  plead  in  cross-action  the  damages  occasioned  by  the 
wrongful  issue  and  levy  of  the  Louisiana  attachment.  It  was  held  that 
the  plea  was  good,  and  that  the  fact  that  the  attachment  was  obtained 
in  another  suit  and  in  another  State  did  not  affect  the  right  to  reconvene. 
This  doctrine  as  to  damages  arising  from  tort  in  another  State  is  ques- 
tioned by  Judge  Bell  in  the  subsequent  case  of  Withee  v.  Fearing.57 

In  Griffin  v.  Chubb58  the  plaintiff  brought  suit  which  he  could  not 
maintain.  One  of  the  defendants  set  up  in  cross-action  a  note  growing 
out  of  the  transaction  on  which  the  plaintiff  based  his  cause  of  action, 
asking  for  judgment  against  plaintiff  as  indorser  thereon.  This  note 
was  not  due  when  plaintiff  brought  suit,  but  was  due  when  defendant 
filed  his  cross-action.  As  the  plaintiff  failed  in  his  case  the  court  refused 
to  give  judgment  for  the  defendant  on  his  cross-action.  This  was  held 
to  be  error.  The  fact  that  the  note  was  not  due  when  the  plaintiff  sued 
did  not  affect  the  defendant's  right  to  sue  on  it  when  it  did  mature,  and 
the  plaintiff's  failure  to  maintain  his  case  did  not  destroy  the  defend- 
ant's right  to  his  cross-action. 

Ashworth  v.  Dark59  is  a  suit  brought  to  foreclose  a  mortgage  on 
personal  property.  Defendant  answered  admitting  the  debt,  but  alleging 
that  plaintiff  had  been  in  possession  of  the  mortgaged  property,  had  con- 
verted it  to  his  own  use,  and  that  it  was  of  value  greater  than  the  debt. 
This  was  held  a  proper  cross-action. 

Carothers  v.  Thorp,60  is  a  suit  on  two  notes  given  at  same  time,  one  for 
the  hire  of  a  negro,  and  the  other  for  rent  of  land.  Defendant  plead 
in  cross-action  a  number  of  items  of  damages.  And  alleged  infer- 
entially  that  these  damages  grew  out  of  the  matters  for  which  the 
notes  were  given,  but  there  was  no  direct  and  specific  allegation  to  that 
effect.  The  plaintiff  filed  a  special  demurrer  to  the  plea  because  it  was 
not  shown  to  be  proper  matter  for  cross-action,  and  the  demurrer  was 
sustained.  The  Supreme  Court  in  affirming  this  decision  announced 
that  the  defendant  must  show  affirmatively  and  directly  the  connection 
of  the  matters  relied  on  by  him  with  those  sued  on  by  the  plaintiff. 

56  Wiley  v.  Traiwick,  14  Texas,  602,  1855. 

57  25  Texas,  504. 

^Griffin  v.  Chubb,  16  Texas,  219,  1856. 

59  Ashworth  v.  Dark,  20  Texas,  825. 

40  Carothers  v.  Thorp,  21  Texas,  362,   1858. 


CROSS-ACTION.  379 

Slaughter  v.  Harley61  teaches  that  where  the  plaintiff  sues  on  several 
separate  demands,  the  defendant  may  plead  in  cross-action  matters 
properly  connected  with  any  of  them,  and  after  he  has  done  so  his 
right  to  trial  on  these  matters  can  not  be  defeated  by  the  plaintiff  by 
dismissing  the  particular  claim  to  which  the  reconvention  was  related. 

In  the  case  of  Goodhue  v.  Meyers,613-  the  plaintiff  sued  on  an  account 
for  merchandise.  The  defendant  plead  in  cross-action  a  claim  for  un- 
liquidated damages  for  seizure  of  certain  personal  property  by  plaintiff. 
The  original  account  and  this  property  had  no  connection  whatever,  and 
its  taking  was  not  under  legal  process  in  an  effort  to  collect  the  account 
sued  on.  The  parties  had,  however,  agreed  that  the  defendant  should 
sell  the  property  to  designated  parties  and  pay  the  profits  to  the  plain- 
tiff, and  the  plaintiff  had  agreed  to  receive  these  profits  and  to  apply 
them  on  the  defendant's  debt.  As  the  defendant  was  in  the  act  of 
delivering  this  property  under  the  sale  and  realizing  the  profits,  the 
plaintiff  took  it  and  thus  prevented  the  defendant  from  obtaining  his 
profit.  The  agreement  between  the  parties  as  to  the  application  of  the 
profits  to  the  debt  sued  on  brought  about  such  a  connection  between 
the  claim  sued  on  and  the  one  set  up  by  the  defendant  as  to  entitle 
him  to  maintain  his  cross-action.  This  is  more  properly  an  illustration 
of  the  second  class  in  which  the  right  to  set  off  the  one  claim  against 
the  other  depends  on  agreement  than  of  such  original  connection  be- 
tween the  claims  as  to  entitle  them  to  consideration  together. 

In  Stewart  v.  Insall,62  the  plaintiff  sold  the  defendant  a  tract  of 
land  claiming  to  be  the  agent  of  another  whom  he  represented  as  the 
owner.  Part  of  the  purchase  money  was  paid  to  the  plaintiff  and  a 
note  for  the  balance  was  given  to  him.  Defendant  refused  to  pay 
the  note,  and  plaintiff  sued  in  his  own  name  upon  it.  The  defendant  set 
up  the  failure  of  title  to  the  land,  and  that  the  plaintiff  had  acted 
fraudulently  in  representing  himself  as  agent  when  his  principal  was 
dead,  and  asked  for  cancellation  of  the  note  and  for  judgment  for  the 
purchase  money  which  he  had  formerly  paid.  The  lower  court  sustained 
exceptions  to  this  plea  and  rendered  judgment  for  the  plaintiff  for  the 
amount  of  the  note.  On  appeal  it  was  held  that  the  cross-action  was 
good  and  the  judgment  was  reversed. 

Heilbroner  v.  Douglas63  recognizes  the  familiar  doctrine  that  the  de- 
fendant in  an  attachment  suit  may  plead  in  reconvention  damages  sus- 
tained by  him  in  the  wrongful  suing  out  of  the  writ  or  wrongful  con- 
version of  the  property  thereunder. 

41  Slaughter  v.  Hailey,  21  Texas,  537. 
*la  Goodhue  v.  Mayers,  58  Texas,  403. 
82  Stewart  v.  Insall,  9  Texas,  397. 
43  Heilbroner  v.  Douglas,  45  Texas,  405. 


380  DEFENDANT'S  OEIGINAL  ANSWER. 

Group  Five.     Claims  which  Can  Not  Be  Plead  Against  Each  Other. 

The  fifth  group  embraces  all  those  claims  for  money  which  do  not 
meet  the  conditions  of  any  one  of  the  four  preceding  groups.  They 
require  no  special  consideration,  as  their  characteristics  are  unimportant 
in  this  connection,  for  whatever  they  may  be  the  one  can  not  be  set 
up  as  a  counterclaim  against  the  other. 


Pleading  Rights  in  Rem,  in  Reconvention. 

There  are  claims  not  falling  under  any  of  the  above  groups,  because 
they  are  based  on  the  one  side  or  the  other,  or  both  on  property  rights. 
These  do  not  come  within  the  express  terms  of  the  statute,  but  are 
governed  by  the  doctrines  of  the  old  Spanish  law  and  of  the  courts  of 
equity  as  modified  by  the  statute.  And  it  it  is  held  that  the  doctrine  of 
reconvention  will  permit  the  filing  of  a  cross-action  whenever  the  rights 
sought  to  be  thus  litigated,  whether  property  rights  or  rights  in  per- 
sonam,  relate  to,  grow  out  of,  or  are  directly  connected  with,  the  same 
thing  or  transaction. 

The  case  of  Egery  v.  Power,64  decided  at  the  Galveston  term,  1851,  is 
nil  action  of  trespass  to  try  title  to  land  and  for  mesne  profits.  The 
defendant  set  up  title  and  alleged  trespass  by  the  plaintiff  and  also 
sued  for  mesne  profits.  The  plaintiff  dismissed  his  suit.  The  defendant 
insisted  on  trial  on  his  cross-action.  The  lower  court  held  that  the 
statute  did  not  authorize  cross-actions  in  suits  for  property,  and  dis- 
missed the  action.  The  defendant  appealed,  and  the  court  held  that 
the  right  of  reconvention  was  derived  from  the  civil  law,  and  was  not 
dependent  on  the  statute,  and  that  it  extended  to  assertion  of  property 
rights,  as  well  as  claims  for  money;  and  as  the  cause  of  action  set  up 
by  defendant  was  directly  connected  with  the  same  thing  as  that  set 
up  by  the  plaintiff,  the  cross-action  was  proper  and  it  was  error  to  dis- 
miss the  case. 

In  Bradford  v.  Hamilton,65  a  suit  for  land  tried  in  1851,  the  defendant 
plead  in  cross-action.  The  plaintiff's  title  failed,  he  dismissed,  and 
defendant  insisted  on  trial  on  cross-action.  This  was  denied  and  the 
whole  case  dismissed.  On  appeal  the  judgment  was  reversed.  In  the 
opinion  the  court  said :  "The  doctrine  is  this :  If  the  defendant  has  a 
cause  of  action  against  the  plaintiff,  touching  the  subject  matter  of  the 
suit,  he  may  set  it  forth  in  his  answer  and  have  legal  redress  against 
the  plaintiff,  to  which  he  is  entitled  in  the  same  manner  and  to  the 
same  extent  as  if  he  were  originally  plaintiff." 

94  Egery  v.  Power,  5  Texas,  501. 

w  Bradford  v.  Hamilton,  7  Texas,  55. 


CROSS-ACTION.  381 

There  are  numerous  other  cases  to  same  effect,60  and  the  practice  is 
too  firmly  established  now  to  admit  of  question. 

There  are  also  pleas  in  reconvention  which  are  admitted  under  the 
•equity  jurisdiction  of  the  court.  If  a  suit  is  brought  to  enjoin  a  judg- 
ment, it  is  always  permissible  for  the  defendant  in  the  injunction  pro- 
ceedings to  set  up  the  claim  upon  which  the  judgment  was  based  and 
recover  a  judgment  on  it.  Or  if  damages  are  occasioned  by  the  suing 
out  of  the  wrongful  injunction,  this  may  be  set  up  by  the  defendant 
in  the  injunction  suit  by  way  of  cross-action.  Again,  in  cases  of  fraud 
in  the  sale  of  property,  the  purchaser  can  in  proper  time  and  manner 
rescind  the  sale  and  recover  the  purchase  money,  or  he  may  keep  the 
thing  and  offset  the  damage  occasioned  by  the  fraud  against  the 
price. 


Uules  of  Pleadings  in  Cross-Action. 

The  rules  of  pleading  in  presenting  a  cross-action  are  just  the  same 
so  far  as  the  substance  of  the  plea  is  concerned  as  if  the  defendant  were 
instituting  suit  on  the  same  matter.  The  form  is,  of  course,  different. 

This  should  also  be  remarked  as  to  setting  out  the  substance;  not 
only  must  the  cross-action  present  a  good  cause  of  action  against  the 
plaintiff,  but  it  must  affirmatively  and  directly  show  such  facts  as  make 
it  a  proper  matter  to  be  considered  in  opposition  to  the  plaintiff's 
claim,67  and  unless  it  does  this  it  will  be  stricken  out  on  demurrer, 
though  considered  by  itself  it  would  be  good  to  sustain  an  independent 
suit. 

When  the  defendant  has  plead  in  cross-action,  the  plaintiff  can  not 
dismiss  his  suit  and  avoid  responsibility  on  the  defendant's  plea.68 

Recapitulation. 

First.  The  statutes  on  counterclaims  are  construed  in  the  light  of  the 
civil  law  and  equity  practice. 

Second.  In  a  few  cases  the  civil  law  doctrine  of  compensation  is 
recognized  and  enforced,  but  these  are  limited  by  the  early  decisions  to 
mutual  accounts  and  the  courts  refuse  to  extend  them. 


68  Hammonds  v.   Belcher,   10   Texas,   271;    Carlin   v.   Hudson,    12   Texas,   202: 
Scalf  v.  Tomkins,  61  Texas,  476. 

07  Castro  v.  Gentilly,  11  Texas,  31;   Carothers  v.  Thorp,  21  Texas,  361;   Heil- 
broner  v.  Douglas,  45  Texas,  403. 

68  Rev.  Stats.  1895,  art.  1260;  Walcott  v.  Hendrick,  6  Texas,  413;  Bra'i'.'oid  v. 
Hamilton,  7  Texas,  59;  Slaughter  v.  Hailey,  21  Texas,  537. 


382  DEFENDANT'S  ORIGINAL  ANSWER. 

Third.  Parties  may  by  agreement  so  connect  claims  existing  between 
them  as  to  make  them  proper  to  be  considered  in  connection  with  and 
in  opposition  to  each  other,  even  though  the  claims  considered  apart 
from  such  agreement  could  not  be  so  dealt  with. 

Fourth.  Under  the  statute  liquidated  claims  may  be  offset,  one  against 
the  other. 

Fifth.  An  unliquidated  claim  for  breach  of  contract  may  be  offset 
against  another  unliquidated  claim  for  breach  of  contract- 
Sixth.  An  unliquidated  claim  can  not  ordinarily  be  offset  against  a 
liquidated  one,  and  vice  versa. 

Seventh.  An  unliquidated  claim  can  be  offset  against  a  liquidated 
one  and  vice  versa,  provided  they  grow  out  of  the  same  cause  of  action, 
but  in  such  cases  the  cross-action  must  allege  the  facts  constituting 
the  connection  between  the  claims  and  must  make  appropriate  prayer 
for  relief. 

Eighth.  That  unliquidated  claims  based  on  two  or  more  separate  and 
distinct  torts  can  not  be  offset  against  each  other. 

Ninth.  That  the  doctrines  of  cross-actions  embrace  not  only  money 
claims  but  also  rights  in  rent;  and  if  the  proper  connection  exists  be- 
tween the  claims  of  the  respective  parties  to  a  piece  of  property  or 
between  a  claim  to  property  on  the*  one  hand  and  for  money  on  the 
other,  they  may  be  considered  together. 

Tenth.  That  for  rights  to  be  offset  against  each  other  they  must  be 
due  between  the  same  parties  and  in  the  same  capacity.  He  who  is  sole 
creditor  in  one  must  be  sole  debtor  in  the  other,  and  those  who  are 
joint  creditors  in  one  must  be  joint  debtors  in  the  other.  To  this  there 
are  some  exceptions  allowed  in  cases  of  insolvency. 

Eleventh.  When  the  claims  fall  in  either  the  first  or  second  group, 
and  have  already  been  applied  to  each  other,  the  rights  of  parties  are 
to  be  determined  on  the  basis  of  the  facts  existing  at  the  time  of  the 
application.  When  the  claims  have  not  antecedently  been  merged  and 
the  court  is  called  on  to  make  the  application  and  adjustment,  it  must 
be  made  as  of  the  date  of  filing  the  pleading  setting  them  up  respectively, 
testing  each  claim  just  as  if  it  were  sued  on  alone. 

Twelfth.  That  the  party  establishing  the  larger  claim  is  entitled  to 
judgment  against  his  adversary  for  the  difference  between  them  and 
for  costs  if  he  held  his  claim  at  the  time  suit  was  brought,  but  if  he 
acquired  the  claim  after  he  were  sued  by  the  other  party,  then  the 
plaintiff  should  recover  costs. 

Thirteenth.  The  defendant  having  properly  set  up  his  cross-action, 
his  right  to  a  hearing  and  adjudication  of  the  issues  thereby  tendered 
can  not  be  cut  off  by  the  plaintiff  either  by  the  voluntary  dismissal  of  his 
case  or  by  the  failure  to  establish  it  on  the  trial. 


LIBEL.  383 


CHAPTER  XV. 

PLEADINGS  IN  SPECIAL  CASES. 

There  are  several  different  kinds  of  suits  in  which  the  rules  of 
pleading  are,  or  at  least  are  thought  to  be,  peculiar,  and  on  that  ac- 
count it  may  be  well  to  treat  these  cases  specially  pointing  out  in  each 
the  correspondence  with  and  differences  from  the  rules  in  ordinary 
suits.  The  most  important  of  these  special  actions  is  trespass  to  try 
title.  It  will  be  considered  in  the  next  chapter;  others  requiring  less 
detailed  attention  will  be  taken  up  in  this  in  the  following  order: 
libel  and  slander,  mandamus,  quo  warranto,  and  trial  of  the  right  of 
property.  The  treatment  will  not  be  exhaustive,  but  will  be  sufficiently 
extended  to  give  the  rules  of  pleading  governing  each. 

LIBEL. 

The  rules  of  pleading  in  actions  for  damage  for  libel  are  not  differ- 
ent from  those  in  other  cases,  though  a  short  consideration  of  their  appli- 
cation may  be  advisable.  Here,  as  elsewhere,  the  plaintiff  in  his  petition 
must  bear  in  mind  the  substantive  law  governing  his  rights,  and 
must  allege  such  facts  as  show  his  right  and  the  defendant's  viola- 
tion of  that  right,  and  the  injury  resulting  either  as  a  presumption  of 
law  or  in  fact.  As  the  right  violated  is  ordinarily  one  of  a  personal 
nature  pertaining  alike  to  all  men,  there  is  but  little,  if  any,  difficulty 
in  setting  it  out,  and  a  general  allegation  of  good  character  and  reputa- 
tion in  respect  to  the  elements  of  character  involved  in  the  statement 
usually  are  sufficient  on  that  branch  of  the  case.  If,  however,  the 
libelous  statements  affect  the  plaintiff  in  some  special  relation  or 
connection  as  in  an  official  capacity  or  business  relation,  then  the  spe- 
cial facts  must  be  alleged,  as  that  he  was  the  incumbent  of  the  office 
or  engaged  in  the  business,  etc. 

The  wrong  charged  against  the  defendant  should  be  clearly  and 
certainly  set  out. 

In  the  case  of  the  Bradstreet  Company  v.  Gill,1  the  court  says: 
"Our  rules  of  pleading  require  that  the  petition  shall  set  forth  'a,  full 
and  clear  statement  of  the  cause  of  action,  and  such  other  allegations 
pertinent  to  the  cause  as  the  plaintiff  may  deem  necessary  to  sustain 

'72  Texas,  115,  9  S.  W.,  753. 


384  PLEADINGS   IN    SPECIAL   CASES. 

his  suit/  etc.  It  has  been  many  times  decided  by  our  counts  that  the 
common  law  distinctions  as  to  pleading  and  its  technicalities  do  not 
prevail  with  us,  but  that  a  clear  and  logical  statement  of  the  cause  of 
action  is  all  that  is  necessary.  A  clear  statement  of  the  facts  consti- 
tuting the  cause  of  action  can  not,  however,  be  dispensed  with.  The 
character  of  the  suit  must  be  the  guide  to  the  pleader,  and  enough 
must  be  stated  to  constitute  a  cause  of  action.  In  a  suit  on  a  note 
it  will  be  sufficient  to  state  the  substance  and  legal  effect  of  the  note; 
not  so  in  a  suit  for  libel.  A  libel  suit  is  based  on  language  or  its 
equivalent. 

"The  complaint  in  a  libel  suit  should  put  the  court  in  possession  of 
the  libelous  matter  published,  the  language  used,  with  such  innuendoes 
as  are  necessary  to  explain  what  is  meant  by  the  language,  and  to 
whom  it  applied,  so  as  to  enable  the  court  to  determine  whether  the 
words  are  actionable.  In  this  case  the  complaint  attempts  to  give  the 
meaning  of  the  words  or  libel  only,  without  stating  what  the  libel 
was.  If  the  libel  consisted  in  reporting  plaintiff's  standing  as  a  mer- 
chant 'in  blank/  the  complaint  should  have  informed  the  court  and 
the  defendant  of  the  fact,  with  such  explanations  as  to  what  was  meant 
by  the  report  as  were  necessary  to  show  that  the  report  was  injurious 
and  defamatory.  This  is  not  a  case  where  the  pleader  must  from 
the  nature  of  the  publication  resort  to  a  verbal  description  of  the 
slanderous  matter,  as  it  would  be  when  movements,  postures,  or  pictures 
are  used.  Plaintiff  could  have  stated  his  cause  of  action  as  it  was  in 
clear  terms.  He  has  not  done  so.  It  is  not  sufficient  in  this  kind  of 
a  suit  to  state  the  substance  of  the  language  or  its  meaning.  We  be- 
lieve the  general  demurrer  ought  to  have  been  sustained.  See  Town- 
send  on.  Slander  and  Libel,  sections  329  to  335,  inclusive." 

The  very  words  written  should  be  quoted  or  repeated  just  as  used 
by  the  defendant.2  If  they  are  intelligible  and  in  terms  relate  to 
plaintiff  in  the  capacity  in  which  he  brings  his  suit  and  sets  out  his 
right,  there  need  be  no  explanation  or  application  of  them;  but  if  the 
meaning  is  doubtful  or  their  relation  to  the  plaintiff  not  clearly  ap- 
parent the  pleader  should  add  appropriate  innuendoes  or  explanatory 
remarks  or  comments  declaring  specifically  and  clearly  the  exact 
meaning  attributed  by  him  to  the  words  and  their  reference  or  ap- 
plication to  the  plaintiff.  It  is  not  necessary,  however,  to  set  out  the 
whole  publication  or  article  in  which  the  defamatory  statements  are 
made.  All  that  is  required  in  this  behalf  is  to  quote  or  copy  those 
portions  which  are  libelous.  If.  however,  it  appears  from  the  ex- 
tracts given  that  there  are  other  portions  of  the  article  or  publication, 
which  qualify  or  modify  these,  then  these  modifying  portions 

2  Poinge  v.  Franklin,  72  Texas,  585,  10  S.  W.,  721 ;  Bradstreet  v.  Gill,  supra. 


LIBEL.  385 

should  also  be  given  so  that  the  court  may  judge  for  itself  of  the  na- 
ture of  the  communication  as  a  whole  and  not  be  dependent  on  the 
conclusion  of  the  pleader  as  to  its  libelous  character.3  The  falsity 
of  the  charges  should  be  averred.  It  is  often  said  that  it  is  not  nec- 
essary to  allege  facts  which  are  not  required  to  be  proved,  but  this  is 
one  of  those  glittering  generalities  which  often  are  better  calculated 
to  mislead  than  to  aid  in  a  proper  solution  of  many  of  the  practical 
questions  which  come  up.  Such  is  the  case  here.  There  is  no  need  for 
the  plaintiff  to  prove  the  falsity  of  the  charges,  for  as  a  matter  of 
evidence  they  are  presumed  to  be  false  until  the  contrary  is  plead  and 
proved;  still,  as  the  falsity  is  an  essential  element  of  the  plaintijf's 
case,  he  must  aver  it  in  his  petition. 

There  are  some  communications  which  are  absolutely  privileged,  and 
for  which  no  suit  will  lie  no  matter  how  false,  malicious,  and  damag- 
ing they  may  be.  Of  course  no  form  of  pleading  could  make  such 
statements  the  basjs  of  a  successful  suit,  if  it  is  properly  defended. 
There  are  other  statements  which  are  privileged,  not  absolutely,  but 
only  conditionally,  that  is,  the  party  is  not  responsible  if  the  state- 
ments are  made  in  good  faith  without  malice,  and  in  the  honest  be- 
lief that  they  are  true.  When  the  statement  sued  upon  appears  from 
the  plaintiff's  petition  to  belong  to  this  class,  care  must  be  taken  by  the 
pleader  to  show  the  absence  of  those  conditions  upon  which  the  privi- 
lege depends,  and  he  must  not  only  aver  the  making  of  the  statement 
and  its  falsity,  but  also  that  it  was  made  with  malice  and  without  be- 
lief in  its  truth.  The  manner  of  making  the  publication  in  the  par- 
ticular- case  ought  to  be  alleged,  though  the  omission  is  not  fatal  on 
general  demurrer  or  objection  to  testimony.  The  defect  should  be 
pointed  out  by  special  demurrer.4  Th'e  manner  of  stating  the  damages 
will  depend  on  the  nature  of  the  libelous  matter.  If  it  belongs  to  one 
of  the  classes  which  are  designated  as  actionable  per  se,  the  law  pre- 
sumes damage  as  a  necessary  consequence,  and  a  general  statement  of 
damage  in  a  given  sum  will  suffice  in  all  cases  to  sustain  a  nominal 
recovery  and  in  some  a  more  substantial  recovery,  but  even  in  these 
cases  it  is  the  safer  and  better  practice  to  supplement  the  general 
allegations  of  damage  with  the  special  facts  showing  actual  injury. 
If  the  statements  are  not  actionable  per  se,  then  the  particular  dam- 
age in  fact  resulting  in  the  case  must  be  plead  and  proved.  These 
special  damages  include  all  the  direct  and  proximate  injurious  re- 
sults which  naturally  followed  from  the  wrong  complained  of.  Their 
kind  and  extent  vary  with  the  varying  facts  of  each  case. 

Passing  from  the  pleadings   of   the  plaintiff  to  those  of   the   de- 

'Wallis  v.  Walker,  73  Texas,  8,  11  S.  W.,  123. 
*  Sinclair  v.  Dalien,  73  Texas,  73,  11  S.  W.,  147. 
25 — Pleading 


336 


PLEADINGS    IN    SPECIAL    CASES. 


fendant,  we  find  that  the  same  general  principles  obtain,  and  that 
ordinarily  the  answer  should  be  prepared  and  presented  much  as  the 
answers  in  other  kinds  of  cases.  The  effect  of  the  general  denial  is, 
however,  somewhat  limited  by  a  combination  of  legal  presumptions 
which  are  declared  to  apply  in  cases  of  this  sort.  Mr.  Cooley  states 
this  series  of  presumptions  thus:  "First,  every  man  is  presumed  to 
be  of  good  repute  until  the  contrary  is  shown;  second,  a  derogatory 
charge  or  insinuation  made  against  him  is  presumed  to  be  false ; 
third,  being  false,  it  is  presumed  to  be  malicious;  fourth,  if  its  natural 
and  legitimate  effect  is  to  cause  damage,  then  it  is  presumed  to  have 
done  so  in  this  instance.  But  if  the  case  is  one  in  which  injury  does  not 
necessarily  follow  the  charge,  the  plaintiff  will  be  required  to  allege 
and  prove  it."5  All  these  presumptions  may  not  be  indulged  in  full 
force  here,  but  the  quotation  serves  to  show  the  general  attitude  of 
the  law  in  cases  of  this  kind.  The  general  denial  puts  the  plaintiff 
on  proof  of  the  publication,  in  ihe  manner  alleged,  of  the  very  words 
charged  by  him  and  of  their  application  and  reference  to  him,  and 
also  the  special  conditions  or  facts  that  make  them  damaging  to  him. 
If  the  words  are  not  privileged  and  are  actionable  per  se,  this  makes 
out  a  case  for  nominal  damages.  If  the  words  are  not  actionable  per  se, 
or  if  they  are  and  he  wishes  to  secure  more  than  nominal  damages,  he 
must  allege  and  prove  his  special  damage.  All  of  these  points,  except 
the  nominal  damage  in  case  of  words  actionable  per  se,  the  defendant 
can  of  course  controvert  and  disprove  under  the  general  denial.  If 
the  statement  is  a  privileged  one  and  this  is  developed  in  the  plaintiff's 
case,  if  the  privilege  be  an  absolute  one,  the  matter  ends  there.  If 
it  be  a  conditional  one,  then  in  addition  to  the  matters  enumerated 
above  the  plaintiff  must  show  lack  of  good  faith,  or  actual  malice,  to 
sustain  the  suit,  In  these  cases  these  additional  facts  may  be  con- 
troverted by  the  defendant  under  the  general  denial. 

The  truth  of  the  defamatory  matter  can  not  be  proved  under  the 
general  denial,  but  must  be  specially  plead.6  The  particularity  re- 
quired in  doing  this  depends  on  the  general  or  specific  nature  of  the 
defamatory  statement.  If  that  is  general,  as  that  "A  is  a  thief,"  a 
general  affirmation  of  the  truth  would  not  be  good,  for  it  would  not 
put  the  plaintiff  on  notice  as  to  what  acts  of  dishonesty  were  sought 
to  be  proved  against  him,  and  in  such  instance  the  general  allegation 
that  the  charge  is  true  should  be  followed  up  by  averments  of  spe- 
cific instances  in  which  A  had  stolen,  as  that  at  a  certain  time  and 
place  he  stole  (7s  horse,  or  D's  cow,  etc.  The  charge  need  not  be 
made  with  all  the  technical  accuracy  and  detail  required  in  an  indict- 

5  Cooley,  Elements  of  Torts,  10. 

°Kuhn  v.  Young  78  Texas,  345,  14  S.  W.,  796;  Nettles  v.  Somervell,  6  Texas 
Civ.  App.,  627,  25  S.  W.,  658. 


SLANDER.  387 

ment  for  the  particular  offense  involved,  but  will  be  sufficient  if  it 
put  the  party  on  notice  of  the  very  matters  which  it  will  be  attempted 
to  prove  against  him.7  The  truth  which  must  be  proved  is  the  truth 
of  the  defamatory  charge  contained  in  the  statement  made  by  the 
defendant.  This  becomes  important  in  those  cases  in  which  the 
language  complained  of  is  a  repetition  of  a. charge  made  by  some  one 
else,  as  that  "I  was  told  that  A  is  a  thief."  Here  the  truth  which 
justifies  this  statement  is  that  A  in  fact  stole  something,  not  that  the 
defendant  was  told  that  A  was  a  thief. 


SLANDER. 

The  same  general  rules  as  to  pleading  apply  here  as  do  in  libel.  The 
task  of  the  pleader  is  frequently  more  difficult  because  of  the  uncer- 
tainty as  to  the  exact  words  which  were  spoken.  These  have  long  since 
died  away,  and  no  fixed  and  permanent  register  of  them  exists.  One 
witness  may  remember  the  words  in  one  way,  another  may  have  the 
same  general  idea,  but  the  words  as  remembered  by  him  are  different. 
It  may  also  be  apparent  that  the  defendant's  witnesses  will  give  still 
a  different  version  of  the  language  used.  How  is  the  lawyer  to  meet 
this  practical  difficulty?  Shall  he  gather  the  general  sense  of  all  these 
statements,  ascertain  what  there  is  common  to  them  all,  and  charge 
that  the  defendant  made  a  statement  of  the  plaintiff  substantially  as 
follows  and  then  set  out  the  general  effect  of  all  the  varying  versions? 
Or  shall  he  be  compelled  to  select  the  one  version  which  he  thinks  it 
most  probable  he  can  prove  and  charge  that  in  haec  verba,  and  take  the 
chances  on  making  the  jury  believe  that  these  were  just  the  words 
uttered?  The  first  would  be  fatal  to  his  suit  on  demurrer.  The  law 
does  not  here  permit  generalization,  and  deduction,  and  the  statement 
of  general  results.  The  language  must  be  set  out  directly  and  posi- 
tively, and  in  the  exact  words  which  are  charged  to  have  been 
uttered.  Such  direct  and  affirmative  allegation  having  been  made  as 
to  one  version,  the  pleader  should  in  an  additional  paragraph  or  count 
directly  and  positively  allege  the  utterance  of  the  words  as  they  will 
be  testified  to  by  the  other  witness,  and  this  process  should  be  con- 
tinued until  a  basis  is  laid  in  the  pleading  for  proof  of  the  language 
as  remembered  by  each  witness,  and  thus  whoever  the  jury  may  be- 
lieve, the  plaintiff  will  have  pleading  upon  which  to  rest  his  testimony. 
Care  must  be  observed  to  make  it  apparent  that  each  of  these  aver- 
ments relates  to  and  is  an  allegation  of  the  same  transaction,  and  is 
but  a  different  way  of  stating  the  same  legal  wrong.  Such  allegations 
furnish  to  the  court  data  upon  which  to  exercise  its  own  judgment  as 


'Kulm  v.  Y'oung,  and  Nettles  v.  Somervell,  supra. 


388  PLEADINGS    IN    SPECIAL    CASES. 

to  the  legal  effect  and  sufficiency  of  each  form  of  the  charge  relied 
upon,  and  also  give  to  the  adverse  party  the  information  to  which 
he  is  entitled  to  enable  him  to  prepare  his  defense.  Quite  perplexing 
questions  frequently  arise  as  to  the  proof  required  in  these  cases  as 
to  the  language  used.  Must  the  exact  words  and  all  of  them  be  proved 
as  alleged,  or  is  it  sufficient  to  prove  language  of  the  same  general  sub- 
stance and  meaning  ?  The  true  rule  seems  to  lie  between  these  two  ex- 
tremes. Of  course  if  the  plaintiff  can  prove  the  exact  language 
imputed  to  the  defendant,  and  all  of  it,  this  is  the  most  satisfactory 
form  in  which  the  case  can  be  presented;  but  suppose  he  can  not  do 
this  but  can  prove  other  language  to  the  same  general  effect,  is  this 
admissible  and  sufficient?  It  is  clear  that  simply  proving  language 
to  the  same  general  effect  is  not  sufficient,  and  proving  different 
language  of  a  different  import  could  not  be.  It  seems  that  on  the 
same  principle  the  plaintiff  should  be  required  to  prove  a  statement 
or  statements,  in  substantially  the  same  words  with  substantially  the 
same  meaning  as  those  alleged.  To  illustrate:  The  charge  is,  A  said 
"B  is  a  thief;"  proof  that  A  said  "B  stole  a  horse"  would  be  of  the 
same  general  import,  but  would  vary  in  the  language,  and  the  proof 
would  not,  it  seems,  sustain  the-  charge;  but  if  the  charge  were  A 
said  "B  is  a  thief;  he  stole  my  horse,"  and  the  proof  is,  "B  is  a  thief; 
he  took  my  horse,"  here  there  is  practical  identity  of  the  idea  and  a 
difference  of  only  one  word — namely,  "took"  instead  of  "stole" — in 
the  language.  The  evidence  should  be  admitted,  and  would  sustain 
the  charge. 

This  is  the  nearest  approach  to  a  general  rule  that  I  have  been  able 
to  get  from  the  cases.8 


MANDAMUS. 

The  statutes  on  the  subject  of  mandamus  are  very  few  and  the  com- 
mon law  precedents  are  not  entirely  applicable;  consequently  there 
is  some  confusion  as  to  the  proper  procedure. 

At  common  law  a  suit  was  begun  by  the  issuance  of  a  "writ."  In 
ordinary  cases  this  writ  was  issued  as  a  matter  of  right  by  the  proper 
clerk  or  ministerial  officer  upon  application  of  the  plaintiff  or  his 
counsel.  Such  application  was  informal  and  was  no  part  of  the  record. 
The  writ  only  admonished  the  defendant  to  appear  at  the  proper  time 
and  place  to  answer  the  complaint  which  the  plaintiff  would  then  and 
there  present  against  him.  Such  writs  issued  as  of  course  and  were 
"writs  of  right." 

There  were  other  writs  which  were  not  issued  by  a  ministerial  officer 

*  Zeliff  v.  Jennings,  61  Texas,  458. 


MANDAMUS.  389 

of  the  court  as  of  course,  but  by  the  court  itself  upon  the  application 
of  some  law  officer  or  some  one  specially  interested  in  the  matter.  In 
such  case  the  application  was  more  formal,  but  it  did  not  constitute 
the  beginning  of  the  suit  and  was  not  part  of  the  record.  The  writ 
granted  was  still  the  leading  process  and  institution  of  the  suit.  When 
such  a  writ  was  desired  it  was  incumbent  upon  the  applicant  to  satisfy 
the  court  of  the  propriety  of  granting  it,  and  to  do  this  he  must  of 
course  make  out  a  prima  facie  case  in  his  favor,  and  as  the  matters 
involved  were  frequently  of  a  public  character  and  the  wrong  com- 
plained of  a  failure  to  perform  some  official  act  required  by  law,  the 
writ  took  the  form  of  a  rule  nisi — that  is,  it  would  command  the  party 
complained  of  to  do  the  thing  charged  to  be  his  official  duty  by  a 
designated  time  or  else  appear-  before  the  court  issuing  the  writ  at 
the  time  specified  and  show  cause  why  he  had  not  done  so.  Hence  this 
writ  commanding  the  party  either  to  do  the  thing  required  or  show 
cause  for  not  doing  so  very  naturally  came  to  be  known  as  an  "alterna- 
tive mandamus."  If  the  officer  obeyed  the  command  and  showed  this 
fact  to  the  court  on  return  day,  the  controversy  was  over.  If  he  did 
not,  the  reasons  he  gave  for  failure  were  required  to  be  very  conclusive 
in  their  nature  and  clearly  and  certainly  set  forth,  and  the  hearing 
was  had  largely  if  not  entirely  on  this  return. 

To  give  further  security  against  abuse  in  obtaining  such  writ,  the 
applicant  was  required  to  make  a  formal  application  or  petition  in 
writing  and  under  oath,  and  sometimes  supported  by  accompanying 
affidavits  from  others,  and  great  strictness  came  to  be  required  in  these 
papers.  It  also  followed  from  the  form  of  procedure  that  a  mere 
denial  by  the  respondent  was  not  a  sufficient  answer  to  the  alternative 
writ.  If  his  failure  to  obey  the  rule  was  based  upon  the  falsity  of  the 
matters  charged  against  him,  he  was  required  not  only  to  make  a 
special  traverse  of  the  facts  set  out  by  denying  the  matters  charged, 
but  in  addition  to  give  the  true  condition  of  affairs.  If  his  reason  was 
that  the  facts  were  true  but  that  there  were  others  which  ought  to  be 
considered,  which  relieved  him  from  the  duty  prima  facie  made  out 
against  him,  then  he  was  compelled  to  set  up  all  these  matters  fully  and 
certainly  by  way  of  confession  and  avoidance.  When  the  time  of  trial 
came,  the  respondent  was  required  to  present  his  return  to  the  alterna- 
tive writ  and  either  show  compliance  with  its  commands  or  satisfy 
the  court  as  to  the  matters  which  he  had  plead  as  an  excuse  for  not 
doing  so.  This  he  might  do  by  demurrer,  showing  that  the  matter 
required  of  him  was  not  a  legal  duty,  or  if  a  duty  at  all  it  was  not 
due  to  the  relator;  or  he  could  disprove  the  facts  set  out  against  him 
in  the  writ  which  had  been  properly  traversed  by  him  in  his  return; 
or  he  could  admit  the  facts  as  set  out  and  destroy  their  effect  by 
proof  of  the  matters  of  confession  and  avoidance  properly  plead  by 
him.  Whatever  form  of  defense  he  chose,  the  burden  was  on  him 


390  PLEADINGS   IN    SPECIAL   CASES. 

to  establish  it.  The  relator  could  controvert  the  points  made  or  sought 
to  be  made  by  the  respondent,  but  he  was  strictly  speaking  on  the 
defensive.  If  the  respondent  failed  in  clearing  himself  from  the  prima 
facie  case  made  out  against  him  by  the  alternative  writ,  a  peremptory 
writ  issued  against  him  and  he  was  compelled  to  obey  it  under  penalty 
of  contempt. 

These  were  practically  the  common  law  rules  of  procedure  and 
pleading  in  mandamus  cases  when  the  government  of  Texas  was 
founded.  That  they  were  and  are  inconsistent  with  the  system  of 
pleading  by  petition  and  answer  adopted  in  1840  can  not  be  denied. 
That  they  came  under  the  terms  of  the  act  rejecting  the  common  law 
pleading  seems  equally  clear.  Notwithstanding  this  our  courts,  on 
the  one  hand,  have  refused  to  apply  to  these  cases  the  simple  system 
adopted  in  ordinary  litigation;  on  the  other  hand  have  denied  that 
the  "ancient  common  law  procedure"  is  to  be  followed  in  all  respects, 
and  the  result  is  no  small  amount  of  uncertainty  as  to  the  proper 
method  of  procedure.88-  Only  one  statute  specially  attempting  to  regu- 
late practice  in  these  cases  in  any  respect  has  ever  been  passed  in  this 
State.  This  was  on  May  11,  1846.  Its  language  is:  "No  mandamus 
shall  be  granted  on  an  ex  parte  hearing,  and  any  peremptory  man- 
damus granted  without  notice  shall  be  abated  on  motion."  This  has 
never  been  repealed  or  amended.9 

Under  these  conditions  it  is  difficult  to  announce  any  rules  at  all, 
and  impossible  to  do  so  with  any  certainty  or  confidence.  In  attempt- 
ing to  do  so  care  must  be  observed  to  distinguish  between  writs  of 
mandamus  issued  by  a  court  or  judge  in  a  case  pending  as  an  aid 
to  the  exercise  of  jurisdiction  already  attached  and  proceedings  in- 
stituted for  the  sole  purpose  of  obtaining  such  a  writ  in  vindication  of 
some  right  of  the  relator  not  then  in  litigation.  The  procedure  in  the 
two  cases  is  necessarily  and  essentially  different.  The  application  in 
the  first  instance  is  to  obtain  the  exercise  of  the  power  of  the  court 
in  some  matter  incidental  to  the  main  suit,  and  is  usually  made  by 
motion  in  the  original  suit.  The  application  in  the  second  class  of 
cases  is  the  institution  of  a  new  suit  entirely  independent  of  and 
unaided  by  any  other  litigation  or  jurisdiction.  It  is  the  last  class 
with  which  we  are  concerned. 

The  writ  of  mandamus  in  our  practice  is  used  for  much  the  same 
purposes  as  at  common  law.  It  is  always  issued  in  the  exercise  of  the 
common  law,  as  contradistinguished  from  the  equity  power  of  the 
court.  Its  purpose  is  to  compel  the  performance  of  some  legal  duty 

8a  Fitxhugh  v.  Ouster,  4  Texas,  390;  Watkins  v.  Kirchain,  10  Texas,  479;  San- 
som  v.  Mercer,  68  Texas,  494,  5  S.  W.,  62;  May  v.  Finley,  91  Texas,  354,  43  S. 
W.,  257. 

•Acts  1846,  p.  300;  Rev.  Stats,  1895,  art.  1450. 


MANDAMUS.  391 

due  to  the  public,  or  to  an  individual  or  individuals  from  a  public 
officer  or  from  some  person,  natural  or  artificial,  exercising  some 
special  power  or  enjoying  some  special  privilege  conferred  by  the  gov- 
ernment.10 It  is  never  used  to  compel  the  discharge  of  a  strictly  pri- 
vate duty  by  a  private  individual. 

The  duty  must  be  ministerial — that  is,  it  must  not  involve  -the 
exercise  of  any  official  discretion.11  The  officers  subject  to  control  in 
this  way  are  usually  executive;  but  if  the  duty  is  strictly  ministerial, 
its  performance  may  be  compelled  even  though  it  be  due  from  a 
judicial  officer. 

In  some  instances  in  which  the  duty  to  act  is  imperative  the  officer 
will  be  compelled  to  proceed  to  its  discharge  although  the  manner  in 
which  it  is  to  be  performed  involves  official  discretion.  In  such  cases, 
all  that  can  be  required  of  the  officer  is  that  he  act  in  some  way,  the 
method  being  left  to  his  determination. 

The  writ  will  never  be  issued  unless  under  the  law  and  facts  the 
duty  required  is  clear  beyond  dispute. 

If  the  official  action  sought  involves  the  determination  of  conflicting 
claims  and  interests  of  several  persons,  the  plaintiff  must  bring  the 
officer  sought  to  be  compelled  and  all  of  those  having  adverse  interests 
before  the  court  and  have  the  rights  of  all  the  parties  adjudged  in  the 
one  proceeding,  and  failure  to  do  so  will  be  fatal  to  his  suit.12 

As  this  is  an  extraordinary  remedy,  it  can  never  be  resorted  to  when 
the  party  has  any  other  adequate  legal  means  of  redress.13  Inadequacy 
of  remedy  will  entitle  to  the  writ  although  there  be  some  ineffective 
remedy  provided  by  law.14 

As  the  proceeding  is  extraordinary,  greater  certainty  is  required  in 
the  petition  than  in  other  cases.15 

Neither  the  statute  nor  rules  require  that  the  petition  shall  be  veri- 
fied ;  but  in  the  early  case  of  Bracken  v.  Wells,16  it  is  said  that  on  gen- 
eral principles  this  should  be  done.  It  is,  therefore,  more  usual 
and  the  safer  practice  to  follow  this  early  case,  although  it  has  since 

is  Wescott  v.  Menard,  Dall.,  504 ;  Tax  Collector  v.  Finley,  88  Texas,  520,  32  S. 
W.,  524;  Pickle  v.  McCall,  86  Texas,  212,  24  S.  W.,  205. 

13  Sansom  v.  Mercer,  68  Texas,  488. 

'-Winder  v.  Williams,  23  Texas,  604;  Smith  v.  Power,  2  Texas,  68;  Cullem  v. 
Lattimer,  4  Texas.  334;  Commissioner  v.  Smith,  5  Texas,  484;  Watkins  v.  Ker- 
chain,  10  Texas,  381;  Gaal  v.  Townsend,  77  Texas,  465,  14  S.  W.,  365. 

13  Arberry  v.  Beavers,  6  Texas,  473. 

14 14  Am.  and  Eng.  Elnc.  of  Law,  102,  note  4. 

15  Commissioner  v.  Smith,  supra ;  Arberry  v.  Beavers,  supra ;  Railway  Co.  v. 
Randolph.  24  Texas,  317;  Tex.  Mex.  Railway  Co.  v.  Locke,  63  Texas,  630;  State  v. 
Street  Railway  Co.,  10  Texas  Civ.  App.,  12,  30  S.  W.,  263. 

18  3  Texas,  88. 


392  PLEADINGS   IN    SPECIAL   CASES. 

been  held17  that  verification  is  not  absolutely  necessary.  In  the  de- 
cision referred  to,  the  court  determined  that  there  was  no  error  in  over- 
ruling a  general  demurrer  to  a  petition  which  was  good  except  for 
want  of  verification;  but  it  is  not  indicated  in  the  opinion  what  would 
have  been  the  result  had  a  special  exception  been  interposed  on  that 
account. 

The  petition  should  show  that  the  applicant  has  no  other  adequate 
and  available  remedy.18 

These  special  rules  as  to  certainty  in  the  petition,  etc.,  seem  to  grow 
partially  out  of  the  ancient  forms  of  procedure,  and  partially  out  of 
the  fact  that,  in  mairy  instances,  the  proceeding  is  against  an  officer 
by  whose  official  acts  the  interests  of  the  public  might  be  seriously 
affected.  For  these  reasons  the  court  is  required  to  look  more  closely 
into  the  matters  presented  in  the  petition,  and,  unless  they  show  a 
substantial  right  and  real  violation,  relief  should  not  be  granted,  even 
though  the  defendant  should  not  be  very  vigilant  in  his  defense.  On 
the  other  hand,  the  same  considerations  require  that  when  the  plaintiff 
does  clearly  and  certainly  show  himself  entitled  to  the  relief  sought, 
the  defendant  must  make  a  careful  and  satisfactory  showing  of  the 
reasons  for  his  nondischarge  of  his  duty. 

From  these  considerations  it  has  been  decided  that  a  general  denial 
is  not  a  sufficient  answer  to  a  petition  which  sets  up  a  good  cause  of 
action;  the  defendant  must  go  further, — he  must  show  fully  the 
reasons  and  facts  which  justify  him  in  refusing  to  do  that  which  the 
plaintiff,  by  his  pleadings,  shows  to  be  his  plain  duty.19 

There  is  no  necessity  for  the  issuance  of  a  formal  "rule"  on  the 
respondent  to  compel  him  to  appear  and  show  cause  why  the  writ 
should  not  issue.20  The  filing  of  a  sufficient  petition  and  the  issuance 
and  service  of  citation,  as  in  ordinary  cases,  is  all  that  is  required 
where  the  plaintiff  seeks  relief  only  on  the  final  judgment.  If,  how- 
ever, he  wishes  some  action  to  be  taken  at  once  by  interlocutory  order, 
then  he  should  verify  his  petition  and  have  some  time  fixed  for  a  hear- 
ing by  the  court,21  or  judge,  as  the  case  may  be,  and  notify  the 
adverse  parties.  In  such  cases  he  may,  after  hearing,  and  upon  proper 
showing  made,  obtain  an  interlocutory  or  temporary  writ. 

There  seems  to  be  no  reported  case  which  definitely  decides  that  the 
writ  just  mentioned  may  issue;  but  it  is  clearly  stated  in  the  constitu- 

17  Brown  v.  Ruse,  60  Texas,  589,  7  S.  W.,  489. 

"  Arberry  v.  Beavers,  6  Texas,  473;  Commissioner  v.  Smith,  5  Texas,  471. 

"Sansom  v.  fiercer,  08  Texas,  494,  5  S.  W..  62;'  May  v.  Finley,  91  Texas,  354, 
43  S.  W.,  257 ;  Fitzhugh  v.  Custer,  4  Texas,  398. 

20  Murphy  v.  Wentworth,  36  Texas,  147. 
"  Rev.  Stats.  1895,  art.  1460. 


MANDAMUS.  393 

tional  provision  that  the  court  or  judge  shall  have  power  to  issue  writs 
of  this  kind  either  in  term  time  or  in  vacation. 

There  are  two  cases  construing  the  statute  of  1846,  already  referred 
to.22  One  of  these23  holds  that  there  is  no  necessity  in  our  practice 
for  an  alternative  writ,  the  citation  being  sufficient;  and  that  the  cita- 
tion should  not  be  returnable  before  the  judge  in  vacation,  but  before 
the  court  in  term  time,  when  the  peremptory  writ  may  be  granted. 
The  second  holds  that  no  ex  parte  writ  can  properly  be  granted.  In 
neither  of  these  cases  does  the  court  pass  upon  the  power  of  the  judge 
to  issue  in  vacation  a  temporary  writ,  after  notice  given  to  the  adverse 
party. 

As  already  indicated,  the  influence  of  the  common  law  upon  our 
pleading  in  these  cases  has  been  very  great.  Thus,  it  has  been  ex- 
pressly held  that  it  is  better  practice  to  swear  to  the  petition;24  and, 
in  a  much  later  case,  common  law  authorities  are  cited  as  conclusive 
that  a  general  denial  and  a  statement  of  matters  constituting  no  de- 
fense are  no  answer,  and  that  plaintiff,  having  a  good  petition,  is 
entitled  to  judgment  by  default  where  only  such  a  denial  and  state- 
ment have  been  filed.25  But  the  common  law  rules  are  not  followed 
in  the  trial  of  the  case,  for  if  the  defendant  does  put  in  such  a  denial 
and  traverse  of  the  petition  as  to  join  issue,  the  burden  of  proof  seems 
to  rest  upon  the  plaintiff;  he  must  show  a  clear  and  certain  right  in 
bimself  and  a  refusal  to  recognize  and  respect  the  same  upon  the  part 
of  the  defendant. 

There  is  some  diversity  of  opinion  as  to  the  necessity  for  a  demand 
of  performance  of  the  duty  before  bringing  suit.  It  seems  to  be  the 
true  rule,  that  a  definite  and  specific  demand  upon  the  defendant  and 
a  refusal  by  him  must  be  shown  in  all  cases,  unless  the  conduct  of  the 
defendant  is  legally  equivalent  to  such  a  refusal, — as  where  one  is 
entitled  to  recognition  as  an  officer  and  defendant  has  recognized  an- 
other as  such  officer.  If  the  duty  devolves  upon  several  and  may  be 
performed  by  any  one  of  them,  demand  must  be  made  of  each;  if  it 
devolves  upon  a  majority  of  a  certain  body,  then  it  must  be  made  on 
such  number  as  to  show  that  a  majority  will  not  act;  If  it  devolves 
upon  a  number  of  persons  collectively,  then  the  demand  must  be  made 
upon  them  collectively.26  When  demand  is  necessary  it  must  be 
alleged.  If  the  facts  render  it  unnecessary  this  must  be  shown. 

M  Supra. 

23  Murphy  v.  Wentworth,  supra. 

24  Bracken  v.  Wells,  supra. 
K  Sarisom  v.  Mercer,  supra. 

20 14  Am.  an  Eng.  Enc.  of  Law,  105,  106,  107. 


394  PLEADINGS   IN    SPECIAL    CASES. 


QUO  WABRANTO. 

Originally  the  writ  of  quo  warranto  was  a  high  prerogative  common 
law  writ  of  a  criminal  nature.  At  an  early  day  this  was  replaced  in 
the  English  practice  by  an  information  in  the  nature  of  a  quo  warranto, 
which,  though  still  retaining  some  of  the  criminal  features,  was  essen- 
tially a  civil  remedy.  This  change  was  effected  largely,  if  not  entirely, 
by  the  statute  of  9th  Anne.  When  this  remedy  was  first  invoked  in  the 
courts  of  Texas,  it  was  held  that  this  English  statute  did  not  apply  and 
the  writ  could  issue  only  in  those  cases  in  which  it  could  have  been 
obtained  under  the  ancient  common  law.27 

There  was  no  legislation  in  Texas  on  this  subject  until  1879,  when 
the  present  statute  was  enacted.  It  is  in  these  words:  "In  case  any 
person  shall  usurp,  intrude  into,  or  unlawfully  hold  or  execute,  or  is 
now  intruded  into,  or  now  unlawfully  holds  or  executes  any  office  or 
franchise,  or  any  office  or  any  corporation  created  by  the  authority 
of  this  State,  or  any  public  officer  shall  have  done  or  suffered  any  act 
which  by  the  provisions  of  law  works  a  forfeiture  of  his  office,  or  any 
association  of  numbers  of  persons  shall  act  within  this  State  as  a  cor- 
poration without  being  legally  incorporated,  or  any  incorporation  -does 
or  omits  any  act  which  amounts  to  a  surrender  or  a  forfeiture  of  its 
rights  and  privileges  as  a  corporation,  or  exercises  power  not  conferred 
by  law,  or  if  any  railroad  company  doing  business  in  this  State  shall 
charge  an  extortionate  rate  for  the  transportation  of  any  freight  and 
passengers,  or  refuse  to  draw  or  carry  the  cars  of  any  other  railroad 
company  over  its  line  as  required  by  the  laws  of  this  State,  the  attorney- 
general,  or  district  or  county  attorney  of  the  proper  county  or  district, 
either  of  his  own  accord  or  at  the  instance  of  any  individual  relator, 
may  present  a  petition  to  the  district  court  of  the  proper  county,  or 
any  judge  thereof,  in  vacation,  for  leave  to  file  an  information  in  the 
nature  of  a  quo  warranto  in  the  name  of  the  State  of  Texas;  and  if 
such  court  or  judge  shall  be  satisfied  that  there  is  a  probable  ground 
for  the  proceeding,  the  court  or  judge  may  grant  the  petition  and  order 
the  information  to  be  filed  and  process  to  issue. 

"When  it  appears  to  the  court  or  judge  that  the  several  rights  of 
divers  parties  to  the  same  office  or  franchise  may  properly  be  deter- 
mined on  one  information,  the  court  or  judge  may  give  leave  to  join 
all  such  persons  in  the  same  information  in  order  to  try  their  respective 
rights  to  such  office  or  franchise. 

"When  the  information  is  filed,  as  hereinbefore  provided,  the  clerk 
shall  issue  citations  in  like  form  as  in  civil  suits,  commanding  the 

27  Wright  v.  Allen,  2  Texas,  158 ;  Banton  v.  Wilson,  4  Texas,  400. 


QUO    WARRANTO.  395 

defendant  to  appear  at  the  return  term  of  said  cotfrt  to  answer  the 
relator  in  an  information  in  the  nature  of  a  quo  warranto.  If  the  in- 
formation is  filed  in  vacation  the  citation  shall  be  returnable  on  the 
first  day  of  the  next  succeeding  term;  if  in  term  time,  it  may  be  made 
returnable  on  any  day  of  the  same  term,  not  less  than  five  days  after 
the  date  of  the  writ,  as  shall  be  directed  by  the  court. 

"Every  person  or  corporation  who  shall  be  cited  as  hereinbefore 
provided  shall  be  entitled  to  all  the  rights  in  the  trial  and  investigation 
of  the  matters  alleged  against  him,  as  in  cases  of  trial  of  civil  causes 
in  this  State:  and  in  cases  of  appeal,  to  which  either  party  shall  be 
entitled,  the  said  court  shall  give  preference  to  such  case  and  hear 
and  determine  the  same  at  the  earliest  day  practicable;  and  all  such 
appeals  shall  be  prosecuted  to  the  term  of  the  court  in  session,  or  the 
first  term  to  be  held,  if  not  in  session,  after  the  judgment  has  been 
rendered  in  the  district  court. 

"In  case  any  person  or  corporation  against  whom  any  such  proceed- 
ing is  filed  shall  be  adjudged  guilty,  as  charged  in  the  information,  the 
court  shall  give  judgment  of  ouster  against  such  person  or  corporation 
from  the  office  or  franchise,  and  may  fine  such  person  or  corporation 
for  usurping,  intruding  into,  or  unlawfully  holding  and  executing  such 
office  or  franchise,  and  shall  also  give  judgment  in  favor  of  the  relator 
for  costs  of  the  prosecution. 

"The  remedy  and  mode  of  procedure  hereby  prescribed  shall  be  con- 
strued to  be  cumulative  of  any  now  existing. 

"Suits  against  persons  illegally  claiming  or  holding  any  State  office 
or  appointment  as  contradistinguished  to  a  county  or  district  office, 
shall  be  brought  in  the  district  court  of  Travis  County."28 

This  statute  is  practically  the  equivalent  of  the  9th  Anne,  and  made 
very  decided  changes  in  our  la/w  on  this  subject.  One  of  the  first  and 
most  important  cases  construing  this  act  is  State  v.  De  Gress,  decided 
in  1880. 29  The  opinion  presents  the  matter  so  clearly  and  strongly  that 
we  quote  from  it  at  length  as  follows: 

"The  proceedings  authorized  by  our  statute  are  substantially  the 
same  as  that  in  the  statute  of  9th  Anne,  and  although  in  form  a 
criminal  method  of  prosecution,  has  long  been  held  by  the  standard 
text  writers  and  the  courts  to  be  'in  its  nature  a  civil  remedy/  'applied 
to  the  mere  purposes  of  trying  the  civil  right,  seizing  the  franchise, 
or  ousting  the  wrong  possessor;  the  fine  being  nominal  only.'  2  Kent, 
p.  313;  3  Blackst,  p.  263;  High  on  Ex.  Bern.,  sees.  603-710,  and  cases 
cited ;  Angell  &  Aimes  on  Corp.,  sec.  733 ;  State  v.  Hardie,  1  Ired.,  42 ; 
State  Bank  v.  State,  6  Blackf.,  272;  State  v.  Kupferle,  44  Mo.,  155; 

28  Acts  Special  Session,  1879,  p.  43;  Rev.  Stats.  1895,  title  93. 

29  State  v.  De  Gress,  53  Texas,  387. 


396  PLEADINGS   IN    SPECIAL   CASES. 

Com.  Bank  v.  State,  4  Smedes  &  Marshall,  504;  Commonwealth  v. 
Commis.  of  County  of  Phila.,  1  S.  &  E.,  385 ;  People  v.  Utica  Ins.  Co., 
15  Johns.,  386;  Tomlin's  Law  Diet.,  title  'Quo  Warranto/  Cole  on 
Crim.  Informations  (Law  Lib.,  vol.  49),  pp.  125-7;  Banton  v.  Wilson, 
4  Texas,  400.  Says  Gaston,  J.,  in  State  v.  Hardie,  supra:  'Originally 
this  was  a  criminal  proceeding.  In  it  the  usurpation  was  charged  as 
an  offense,  and  the  offender,  upon  conviction,  was  liable  to  fine  and 
imprisonment.  Such,  however,  were  the  conveniences  attending  the 
information,  as  a  mode  of  trying  the  mere  question  of  right  to  the  office 
or  franchise,  that,  though  it  never  entirely  lost  its  form  as  a  criminal 
proceeding,  it  was  so  modeled  as  to  become  substantially  a  civil  action. 
Fine,  indeed,  was  imposed  upon  conviction ;  but  it  was  nominal  only, — 
no  real  punishment  was  inflicted, — and  it  became  before  our  revolu- 
tion the  general  civil  remedy  for  asserting  and  trying  the  right,  in 
order  to  seize  the  office  or  franchise,  or  to  oust  the  wrongful  possessor. 
21  Ired.,  48.' 

"Again  he  says:  'The  proceeding  before  us  is  carried  on  diverso 
intuitu,  and  to  hold  it  prohibited  by  the  bill  of  rights  would  be  to 
sacrifice  substance  to  mere  form.  If,  indeed,  it  should  ever  be  at- 
tempted, in  proceedings  of  this  character,  to  impose  a  real  fine,  or  to 
inflict  any  other  punishment,  so  as  to  make  them  in  effect  criminal 
prosecutions,  such  attempts  would  fall  before  the  explicit  prohibitions 
of  the  bill  of  rights  now  so  needlessly  invoked/  1  Ired.,  49. 

"The  provision  of  our  statute  that  the  court  'may  fine  such  person 
or  corporation  for  usurping,  intruding  into,  or  unlawfully  holding  and 
executing  such  office  or  franchise/  is  designed  to  receive  the  practical 
construction  given  it  under  that  statute,  and  to  be  inoperative  save  aa 
a  nominal  fine. 

"If,  however,  it  should  be  construed  as  a  criminal  statute,  author- 
izing'the  court  to  impose  an  indefinite  fine,  it  would  in  our  opinion  fail 
to  conform  to  the  requirements  of  our  law  in  affixing  the  penalty;  and 
to  the  extent  of  the  fine  will  be  inoperative.  Eev.  Stats.,  Penal  Code, 
art.  3. 

"The  statute,  however,  itself  directs  the  clerk  to  'issue  citation  in 
like  form  as  in  civil  suits;'  that  the  person  or  corporation  'shall  be 
entitled  to  all  the  rights  in  trial  and  investigation  of  the  matters 
alleged  against  him,  as  in  case  of  trials  of  civil  causes  in  this  State/ 
and  expressly  entitles  either  party  to  an  appeal. 

"As  the  Constitution  denies  the  State  the  right  of  appeal  in  criminal 
cases,  it  is  plain  that  the  Legislature  intended  it  to  be  classed  as,  and 
practically  to  be,  a  civil  case. 

"Our  opinion  is,  that  the  statute  in  effect  but  provides  for  a  civil 
suit  in  the  name  of  the  State  to  oust  one  who  holds  an  office  in  violation 
of  law,  or  a  corporation  exercising  franchises  which  it  has  forfeited. 
"Eegarded  as  a  civil  suit  in  behalf  of  the  State,  the  'matter  in  con- 


QUO    WARRANTO.  397 

troversy  being  a  right  to  an  office  of  the  value  of  $500,  the  district 
court  under  the  Constitution  had  jurisdiction  to  try  it;  and  that  part 
of  the  act  which  directs  the  proceeding  to  be  in  the  district  court  is 
not  in  conflict  with  the  Constitution.'  Const.,  art.  5,  sec.  8. 

"Actions  to  try  the  right  to  an  office,  as  distinguished  from  contested 
election  cases,  have  before  the  present  Constitution  pertained  to  the 
jurisdiction  of  the  district  court.  Banton  v.  Wilson,  4  Texas,  400; 
Bradley  v.  McCrabb,  Dallam,  506." 

The  rules  thus  established  have  not  since  been  changed,  and  under 
this  statute  the  information  in  the  nature  of  a  quo  warranto  has  been 
recognized  as  the  proper  remedy  in  a  number  of  cases  which  clearly  do 
not  come  within  the  narrow  limits  fixed  in  the  earlier  decisions. 

From  the  earliest  period  of  our  history  this  proceeding  has  been 
recognized  as  the  proper  remedy  in  behalf  of  one  entitled  to  a  public 
office  against  the  intruder,  and  this  is  still  the  correct  practice.30 

That  the  office  is  municipal  as  distinguished  from  a  State  office  does 
not  affect  the  State's  right  to  institute  and  maintain  this  proceed- 
ing.31 

When  persons  unlawfully  assume  to  act  as  a  corporation,  public  or 
private,  without  any  authority  of  law  or  under  color  of  authority  not 
legally  siifficient,  this  is  the  proper  method  to  dissolve  such  unlawful 
combination;32  if  there  is  color  of  authority  in  the  corporation,  this 
is  the  exclusive  method  by  which  it  may  be  attacked.  This  rule  was 
applied  to  the  resistance  of  the  payment  of  municipal  tax  because  the 
corporation  claiming  to  levy  and  collect  it  was  unlawful.33  If  the 
corporation  is  lawfiil  but  there  is  some  defect  in  the  levy  or  other  mat- 
ter pertaining  to  the  exercise  of  the  power,  this  is  not  an  appropriate 
remedy.  * 

This  is  also  the  proper  proceeding  to  oust  a  person  or  corporation 
from  the  unlawful  or  usurped  enjoyment  of  a  franchise;34  also  to  ad- 
judge the  forfeiture  of  a  franchise  for  misuser  or  nonuser,  but  not  to 
suspend  or  regulate  the  exercise  of  a  lawful  power,  nor  to  enforce  a 
private  contract  or  exact  penalties  for  its  violation.35  A  corporation 

80  Ex  Parte  De  Bland.  Dall.,  406;  Bradley  v.  McCrabb,  Dall.,  504;  Wright  v. 
Allen,  2  Texas,  158;  State  v.  Owen,  63  Texas,  270;  Williams  v.  State,  69  Texas, 
368,  6  S.  W.,  845;  Dean  v.  State,  88  Texas,  295,  30  S.  W.,  1047,  31  S.  W.,  185. 

11  State  v.  Wofford,  90  Texas,  514,  39  S.  W.,  921. 

32  State  v.  Dunson,  71  Texas,  65,  9  S.  W.,  103;  State  v.  Goowin,  69  Texas,  55, 
5  S.  W.,  678;  Ewing  v.  State,  81  Texas,  172,  16  S.  W.,  872;  Matthews  v.  State, 
82  Texas,  577,  18  S.  W.,  711. 

83  Brennan  v.  Weatherford,  53  Texas,  337. 

"Morris  v.  State,  62  Texas,  728. 

"Morris  v.  Leona,  67  Texas,  303,  3  S.  W.,  281. 


398  PLEADINGS   IN    SPECIAL    CASES. 

can  not  in  such  a  proceeding  be  deprived  of  immunities  or  privileges 
which  are  in  the  nature  of  property  rights.30 


Parties. 

This  action  should  always  be  brought  in  the  name  of  the  State  as 
plaintiff.37  Very  frequently  some  private  person  is  interested  in  the 
subject  matter  of  the  suit;  in  such  case  he  usually  becomes  the  relator, 
that  is,  the  person  who  applies  to  the  proper  officer  of  the  State  to 
induce  him  to  institute  the  proceeding  and  relates  to  him  the  facts 
making  this  action  proper.  This  relation  i^  usually  in  the  form  of  a 
written  statement  or  petition  under  oath,  and  is  presented  by  the 
officer  to  the  court  when  he  makes  request  for  the  privilege  of  filing; 
the  information.38  In  such  cases  the  State  is  the  real  party  and  con- 
trols the  litigation.39  Even  in  cases  in  which  the  rights  of  the  public 
alone  are  involved  it  is  customary  for  some  one  to  act  as  relator  ;40  though 
the .  statute  gives  to  the  proper  officer  the  right  to  institute  the  action 
on  his  own  motion. 

For  acts  in  violation  of  article  4,  section  22,  of  the  Constitution,  the 
Supreme  Court  has  held  that  no  one  except  the  attorney-general  is 
authorized  to  file  the  information;  so  much  of  the  statute  as  attempts 
to  confer  authority  on  district  and  county  attorneys  to  prosecute  in 
such  cases  being  unconstitutional.41  In  all  other  cases  it  may  be  filed 
by  the  attorney-general  or  the  district  or  county  attorney  of  the  proper 
district  or  county. 

The  statute  contemplates  a  petition  separate  from  the  information. 
It  has  been  held  that  it  is  not  absolutely  essential  to  prepare  and  file 
such  separate  instrument,  though  it  is  the  better  practice.42 

The  act  does  not  in  terms  require  that  either  the  petition  or  the 
information  shall  be  sworn  to,  but  the  practice  under  the  statute  of 
Anne  and  also  under  statutes  in  other  States  similar  to  ours  require 
it,  and  our  Supreme  Court  has  commended  the  practice  and  declared  it 
desirable.43 

^Yhen  the  court  or  judge  has  given  permission  to  file  the  information, 

36  Railway  Co.  v.  State,  75  Texas,  356,  12  S.  W.,  085. 

37  Rev.  Stats.,  title  93,  sec.  1,  supra ;  Morris  v.  State,  62  Texas,  729 ;  Fowler  v. 
State,  08  Texas,  30,  3  S.  W.,  255. 

88  State  v.  Owens,  63  Texas,  270;  McAllen  v.  Rhodes,  65  Texas,  348. 

39  Matthews  v.  State,  82  Texas,  577,  18  S.  W.,  711. 

40  East  Dallas  v.  State,  73  Texas,  370,  11  S.  W.,  1030. 
"  State  v.  Railway  Co.,  89  Texas,  503,  35  S.  W.,  1067. 

42  East  Dallas  v.  State,  supra. 

43  East  Dallas  v.  State,  supra;   Hunnicutt  v.  State,  75  Texas,  233,  12  S.  W., 
106;  Little  v.  State,  75  Texas,  016,  12  S.  W.,  905. 


QUO    WARRANTO.  399 

it  seems  that  no  further  objection  to  preliminary  matters  can  be 
urged,  and  the  respondent  is  confined  to  his  defenses  against  'the  in- 
formation proper.44 

If  the  case  presented  is  one  in  which  the  rights  of  the  public  alone 
are  involved,  and  the  judge  is  satisfied  from  all  the  facts  that  it  would 
be  harmful  instead  of  beneficial  to  entertain  the  action,  he  should 
refuse  permission  to  file  the  information;  if  in  such  case  he  should 
im providently  grant  the  permission,  and  it  should  develop  on  the 
trial  that  the  judgment  of  ouster  would  be  harmful  to  the  public  inter- 
ests, he  should  refuse  to  enter  it  and  dismiss  the  case.45 

When  the  proceeding  is  against  an  individual  for  unlawfully  usurp- 
ing an  office  or  using  a  franchise,  he  alone  should  be  made  defendant. 
If  it  is  against  a  number  of  persons  for  usurping  and  exercising  the 
powers  of  a  corporation  which  has  no  legal  existence,  these  individuals 
should  be  joined  as  defendants,  but  the  pretended  corporation  should 
not  be.  Where  there  is  a  corporation  in  existence  and  the  design  is 
to  forfeit  its  charter  powers  and  rights  for  nonuser  or  misuser,  the  cor- 
poration is  the  only  necessary  party;  the  individuals  should  not  be 
sued.40 


Jurisdiction. 

The  writ  of  quo  warranto  is  not  named  in  either  the  constitutional 
or  statutory  grants  of  jurisdiction  to  the  district  or  county  courts. 
Under  former  Constitutions  it  was  held  that  the  jurisdiction  of  the 
district  court  in  these  cases  depended  upon  the  value  of  the  office 
usurped  or  the  corporate  rights  and  privileges  involved  in  the  case.47 
Under  the  present  Constitution  the  Supreme  Court  has  decided  that 
the  district  court  has  jurisdiction  without  reference  to  the  amount  in 
controversy,  and  has  strongly  intimated  that  the  county  court  has 
no  jurisdiction,  no  matter  what  the  amount  involved.48 

Venue. 

In  proceedings  to  try  the  right  to  a  State  office  the  venue  is  fixed  by 
the  statute  in  Travis  County;  in  all  other  cases  it  is  to  be  determined 
by  the  general  rules  governing  in  ordinary  suits. 

"  Hunnicutt  v.  State,  supra. 

*>  State  v.  Hoff,  88  Texas,  297,  31  S.  W.,  290. 

46Ewing  v.  State,  81  Texas,  172,  16  S.  W.,  872;  Railway  Co.  v.  State,  75  Texas, 
434,  12  S.  W.,  090. 

"State  v.  De  Gress,  53  Texas,  396;  East  Dallas  v.  State,  73  Texas,  370,  11  S. 
W.,  1030. 

48  Dean  v.  State,  88  Texas,  295,  30  S.  W.,  1047,  31  S.  W.,  185. 


400  PLEADINGS   IN    SPECIAL   CASES. 

Pleading. 

As  an  information  in  the  nature  of  a  quo  warranto  is  now  essentially 
a  civil  suit  in  which  the  defendant  or  respondent  is  "entitled  to  all 
the  rights  in  the  trial  and  investigation  of  the  matters-  alleged  against 
him,  as  in  cases  of  trial  of  civil  causes  in  this  State,"  the  pleadings 
are  to  a  large  extent  governed  by  the  rules  applicable  in  ordinary  civil 
suits.  The  principal  differences  are  that  in  this  proceeding  the  in- 
formation, which  takes  the  place  of  the  plaintiff's  original  petition, 
can  not  be  filed  without  the  permission  of  the  judge  or  court,  and 
that  in  order  to  obtain  this  the  attorney  for  the  State  usually  accom- 
panies the  information  with  a  formal  petition  under  oath  made  by  a 
party  interested  in  the  matter,  called  the  relator,  which  he  presents  to 
the  judge  or  court.  It  is  said  that  more  particularity  is  required  in 
the  information  than  in  ordinary  pleadings.  More  restraints  are  placed 
around  the  right  of  amendment.  In  discussing  this  question  in  Davis 
v.  State,49  the  Supreme  Court  says:  "It  is  also  claimed  that  the  ex- 
ceptions should  have  been  sustained,  because  the  allegations  in  the 
amended  petition  do  not  conform  to  the  relation.  This  was  not  made 
a  ground  of  special  exception,  and  the  assignment  does  not  raise  the 
question.  It  is  not  fundamental  error  as  is  contended.  In  view  of  a 
new  trial,  and  that  exception  may  hereafter  be  presented  based  upon 
that  ground,  we  deem  it  best  to  pass  upon  it. 

"There  seems  to  be  some  conflict  of  authority  in  other  jurisdictions 
upon  the  question  whether  the  remedy  by  an  information  in  the  nature 
of  a  quo  warranto  is  to  be  treated  as  a  civil  or  a  criminal  action  (High 
on  Ex.  Hem.,  sees.  700,  711),  but  we  think  that  under  our  statute  it 
is  to  be  tried  as  a  civil  suit.  The  act  authorizing  this  proceeding  pro- 
vides that  a  citation  shall  issue  'in  like  form  as  in  civil  suits'  (section 
3),  and  that  the  respondent  'shall  be  entitled  to  all  the  rights  in  the 
trial  and  investigation  of  the  matters  alleged  against  him  as  in  cases 
of  trial  of  civil  causes  in  this  State.'  Excluding  certain  special  pro- 
visions intended  to  secure  a  speedy  disposition  of  the  case  in  the  trial 
court  and  upon  appeal,  there  is  nothing  in  the  act  to  indicate  that  the 
rules  of  practice  prescribed  in  the  Revised  Statutes  should  not  apply, 
as  far  as  is  consistent  with  the  nature  of  the  proceeding.  We  are 
inclined  to  the  opinion  that  an  amendment  to  the  information  should 
not  be  permitted  which  sets  up  grounds  for  the  relief  sought  essentially 
different  from  those  alleged  in  the  original  information;  but  we  see 
no  reason  to  doubt  that  under  our  liberal  system  of  amendment  one 
should  be  allowed  which  contains  allegations  merely  in  enlargement 
of  or  germain  to  the  grounds  originally  alleged.  The  rule  in  our  State 

0  Davis  v.  State,  75  Texas,  420,  12  S.  W.,  957. 


QUO    WARRANTO.  401 

appears  to  be  to  allow  the  information  in  a  quo  warranto  proceeding 
to  be  amended." 

The  pleadings  by  the  defendant  should  conform  substantially  to  the 
ordinary  rules  and  may  consist  of  general  and  special  demurrers,  of 
general  and  special  denials  and  of  independent  facts  alleged  as  a  basis 
for  and  justification  of  the  defendant's  conduct  in  the  premises.  Great 
certainty  and  particularity  should  be  observed  by  the  defendant  in 
setting  up  this  new  matter. 

This  is  a  very  great  departure  from  the  ancient  practice  in  which 
the  defendant  was  required  to  establish  the  legality  of  his  claim  to  do 
the  acts  complained  of  by  the  government. 


Judgment. 

The  judgment  rendered  in  each  case  must  conform  to  the  particular 
facts,  and  should  be  so  framed  as  to  correct  the  wrongs  found  by  the 
court  to  exist.  If  the  proceeding  be  instituted  to  prevent  the  usurpa- 
tion of  some  corporate  right  or  franchise  the  judgment  should  be  one 
of  ouster  against  the  parties  unlawfully  exercising  the  p<5wers;  if  it 
be  to  forfeit  the  charter  of  a  corporation  legally  existing,  it  should 
declare  such  charter  forfeited,  dissolve  the  corporation,  and  forbid  the 
further  exercise  of  the  corporate  powers  and  franchise;  if  it  be  one  to 
try  the  right  to  an  office  and  the  relator  is  successful,  the  judgment 
should  declare  his  right,  remove  the  intruder,  and  induct  the  relator 
into  the  office.  If  the  corporation  whose  charter  is  forfeited  is  a 
private  one,  the  judgment  should  make  proper  provisions  for  the  pro- 
tection of  the  rights  of  creditors  and  stockholders  in  its  assets.  If  the 
corporation  be  a  private  one,  but  is  engaged  in  some  public  business, 
so  that  its  property  is  charged  with  a  public  use,  the  forfeiture  of 
the  charter  does  not  relieve  the  property  from  such  charge  and  the 
judgment  should  make  due  provision  for  the  rights  of  the  public  as 
well  as  of  the  creditors  and  stockholders.  This  is  usually  done  by  the 
appointment  of  a  receiver,  and  the  administration  of  the  property  by 
the  court  through  him,  until  the  stockholders  can  reorganize  into  a 
new  corporation  or  otherwise  qualify  themselves  to  take  charge  of  the 
property  in  such  a  way  as  to  protect  the  rights  of  the  public  and  all 
others  concerned.50 

The  statute  provides  for  a  fine  against  the  defendant  in  case  of  con- 
viction. This  is  a  mere  formal  provision  which  could  only  support  a 
fine  for  a  nominal  amount,  if  fo?  anything.  Its  constitutionality  is 

30  Railway  Co.  v.  State,  75  Texas,  434,  12  S.  W.,  690. 
26 — Pleading 


402  PLEADINGS    IN    SPECIAL    CASES. 

very  doubtful  even  in  case  of  nominal  penalty,  and  to  attempt  to  inflict 
under  it  any  appreciable  punishment  would  clearly  be  in  violation  of 
the  Bill  of  Eights.51 


Cases  in  Which  This  is  Not  the  Proper  Remedy. 

This  is  not  the  proper  action  in  which  to  attack  the  existence  of  a 
corporation  when  its  regularity  depends  upon  facts  left  to  the  de- 
termination of  an  extrajudicial  tribunal  which  has  decided  the  corpora- 
tion to  be  lawful.52  Nor  is  it  the  proper  method  to  determine  which 
of  two  legally  constituted  officers  is  entitled  to  exercise  a  specified  right 
or  privilege,  nor  to  prevent  an  officer  from  doing  an  act  which  he 
claims  pertains  to  his  office.53  Nor  to  prevent  a  breach  of  contract  nor 
give  remedy  for  such  breach,  although  the  contract  pertain  to  a  public 
franchise.54  Nor  to  raise  questions  as  to  the  eligibility  of  a  candidate 
for  office  which  have  been  passed  on  by  a  city  council  in  exercise  of 
power  given  in  the  charter.55  Nor  to  oust  an  officer,  who  has  been 
declared  elected,  for  alleged  bribery  in  procuring  the  office.56  Nor  to 
prevent  one  from  following  a  private  business,  though  it  take  from 
the  emoluments  of  a  public  office.57 


TRIAL  OP  RIGHT  OP  PROPERTY. 

This  is  a  summary  proceeding  given  by  the  statute  to  one  who  claims 
•to  be  the  owner  of  personal  property  or  to  be  entitled  to  the  immediate 
and  present  possession  of  such  property,  against  the  plaintiff:  in  a  writ 
of  execution,  attachment,  sequestration,  or  other  writ  which  has  been 
levied  on  the  property,  for  the  purpose  of  trying  or  having  adjudged 
the  rights  of  said  claimant  in  said  property  and  its  liability  to  seizure 
under  siich  writ.  The  method  of  procedure  is  given  at  length  in  the 
statutes.58  To  entitle  to  this  remedy  the  claimant  must  be  either  the 

61  State  v.  De  Gress,  supra. 
"State  v.  Goowin,  69  Texas,   55. 

53  State  v.  Smith,  55  Texas,  447. 

"Morris  et  al.  v.  Leona  et  al.,  67  Texas,  303. 
MSeay  v.  Hunt,  55  Texas,  545. 

54  State  v.  Humphries,  74  Texas,  466. 
M  Watts  v.  State,  61  Texas,  184. 

"Rev.  Stats.  1895,  title  107;  Willis  v.  Thompson,  85  Texas,  301,  20  S.  W., 
155;  Rodriguez  v.  Trevino,  54  Texas,  200. 


TRIAL   OF   RIGHT   OF    PROPERTY.  403 

owner  or  entitled  to  the  immediate  possession  of  the  property.09     It 
is  not  necessary  that  he  have  both  these  rights.60 

Neither  a  trustee  whose  trust  estate  was  created  after  the  levy,61  nor 
who  was  not  in  or  entitled  to  the  possession  when  the  levy  was  made  ;02 
nor  a  person,  who  is  a  party  to  the  writ,  and  who  sets  up  exemption  of 
the  property  from  execution,  can  avail  himself  of  this  remedy.63 

The  remedy  is  cumulative  to  the  common  law  action  for  damage,64 
but  when  the  election  is  once  made  the  party  must  abide  it,  and  can 
not  afterward  prosecute  his  common  law  action.05 

The  law  requires  the  claimant  to  file  with  the  sheriff  or  constable 
making  the  levy,  an  affidavit  setting  up  his  claim,  and  that  it  is  made 
in  good  faith.  This  must  be  accompanied  by  a  bond  with  sureties  to 
bo  approved  by  the  officer.  When  these  papers  are  presented  to  the 
officer  and  approved  by  him,  he  must  make  the  proper  indorsements  on 
the  writ  and  return  it  to  the  court  designated  by  statute,  and  deliver 
the  property  to  the  claimant.  Thereafter  the  plaintiff  in  the  writ  must 
look  to  the  claimant  and  the  sureties  on  his  bond  for  the  production 
of  the  property  or  payment  of  its  value.  The  property  itself  is  no 
longer  in  the  possession  of  the  officer.66  When  the  writ,  its  indorse- 
ments, the  affidavit,  and  bond  are  filed  in  the  court  having  jurisdiction, 
it  is  the  duty  of  the  clerk  to  enter  the  proceedings  on  the  civil  docket 
in  their  regiilar  order,  with  the  plaintiff  in  the  writ  as  plaintiff  and 
claimant  in  the  affidavit  as  defendant.67  The  affidavit  and  bond  are 
not  pleading.08  The  pleadings  are  designated  "issues,"  and  are  to  be 
made  up  by  the  parties  under  the  direction  of  the  court.69  They 
must  show  affirmatively  the  right  of  the  plaintiff  to  seize  and  sell  the 

.  ra  Rev.  Stats.  1895. 
80  White  v.  Jacobs,  66  Texas,  464,  1  S.  W.,  344. 

61  Saunders  v.  Ireland,  87  Texas,  316,  27  S.  W.,  880. 

cGarrity  v.  Thompson,  64  Texas,  598;  Wilber  v.  Kray  &  Co.,  73  Texas,  533, 
US.  W.,  540. 

83  Parker  v.  Portis,  14  Texas,  166;  Walmsley  v.  Hubbard,  24  Texas,  612. 
04  Lang  v.  Dougherty,  74  Texas,  228,  12  S.  W.,  29. 

"'Vickery  v.  Ward,  2  Texas,  212;  Howeth  v.  Mills,  19  Texas,  295;  Carter  v. 
Carter,  36  Texas,  693:  Moore  v.  Gammel,  13  Texas,  121;  Gabel  v.  Weisensee,  49 
Texas,  134;  Whitman  v.  Willis,  51  Texas,  426. 

48  Freiberg,  Klein  &  Co.  v.  Elliott  &  Wright,  64  Texas,  367. 

"Rev.  Stats.  1895,  art.  5296;  Cobb  v.  Campbell,  14  Texas  Civ.  App.,  433,  38  S. 
W.,  246. 

«•  Wright  v.  Henderson,  10  Texas,  204;   Hamburg  v.  Wood,  66  Texas,   168. 
"  Rev.  Stats.  1895,  art.  5298. 


404  PLEADINGS   IN   SPECIAL   CASES. 

property,  on  the  one  hand,70  and  the  nature  of  .the  defendant's  claim, 
on  the  other.71 

In  the  preparation  of  these  issues,  the  parties  should  conform  as 
nearly  as  possible  to  the  rules  of  pleading, — fullness,  conciseness, 
accuracy,  and  directness  being  as  desirable  here  as  in  other 
cases.  Neither  the  claim  of  the  plaintiff  nor  the  defenses  of  the 
claimant  can  go  beyond  those  set  out  in  the -respective  pleadings  of  the 
parties.72  This  is  illustrated  in  the  cases  denying  to  the  claimant,  in 
absence  of  express  averment,  the  right  to  attack  for  fraud  the  judgment 
on  which  the  writ  issued.73 

There  is  sometimes  manifested  a  tendency  to  looseness'in  this  charac- 
ter of  cases  which  ought  to  be  discountenanced  both  by  the  bench  and 
by  the  bar.  There  is  no  good  reason  why  the  "issues"  should  not  be 
as  carefully  prepared  in  these  cases  as  in  others,  and  the  careful,  dili- 
gent practitioner  will  find  as  much  advantage  from  these  qualities  here 
as  elsewhere. 

If  the  plaintiff  fails  to  appear  and  prosecute  his  case  at  the  time 
and  in  the  manner  provided  by  the  statute,  his  claim  to  have  the 
property  held  or  sold  under  his  writ  will  be  dismissed.74 

If,  however,  the  plaintiff  comes  and  tenders  issues,  and  the  defend- 
ant fails  to  do  so,  his  claim  in  and  title  to  the  property  will  be  denied.79 

"Latham  v.  Selkirk,  11  Texas,  314;  Cobb  v.  Campbell,  14  Texas  Civ.  App., 
433,  38  S.  W.,  246. 

"Rev.  Stats.  1895,  art.  5299;  McKinnon  v.  Reliance  Co.,  63  Texas,  30;  Choate 
v.  Mcllhenny  Co.,  71  Texas,  119,  9  S.  W.,  83. 

"Huston  v.  Curl,  8  Texas,  240. 

"  Livingstone  v.  Wright,  68  Texas,  706,  5  S.  W.,  407 ;  Saunders  v.  Ireland,  27 
S.  W.,  830. 

"Rev.  Stats.  1895,  art.  5300. 

7SRev.  Stats.  1895,  art.  5299;  Field  v.  Fowler,  62  Texas,  68;  Martin  v.  Harnett, 
86  Texas,  517,  25  S.  W.,  1115. 


TRESPASS  TO  TRY  TITLE.  405 


CHAPTEE  XVI. 

TEESPASS  TO  TRY  TITLE. 

Few,  if  any,  legal  questions  are  of  more  importance  than  those  which 
relate  to  private  rights  in  and  ownership  of  land  and  the  methods  of 
vindicating  and  protecting  them.  The  English  tenures  are  largely 
feudal,  and  the  common  law  real  actions  are  among  the  most  technical 
and  cumbrous  of  all  forms  of  procedure  under  that  system.  Many  were 
the  expedients  resorted  to  and  the  fictions  adopted  to  avoid  in  some 
measure  the  expense,  delay,  and  hardships  of  these  actions.  Long  prior 
to  the  adoption  of  the  common  law  in  Texas,  the  most  common  method 
of  trying  and  determining  rights  and  possessory  titles  to  land  was  the 
action  of  ejectment.  While  this  was  not  so  inconvenient  and  technical 
as  the  actions  which  it  superseded,  it  would  seem  to  be  sufficiently  so  to 
satisfy  any  longing  in  the  professional  mind  in  that  direction.  The 
method  pursued  was  substantially  as  follows:  A  and  B  were  adverse 
claimants  to  a  parcel  of  land.  A  would  imagine  that  he  had  leased 
the  land  to  C,  and  G  would  imagine  that  he  had  been  placed  in  possession 
by  A.  A  and  C  would  then  jointly  imagine  that  C  had  been  dis- 
possessed by  D,  and  C  would  bring  suit  against  D  for  the  ouster.  D 
would  then  imagine  that  he  was  the  tenant  of  B  and  had  possession  from 
him,  and  would  notify  B  that  he  (D)  was  only  claiming  as  his  tenant 
and  would  not  defend  the  suit,  but  that  he  (B)  must  come  in  and 
defend  it  or  judgment  would  go  for  A.  B  would  then  apply  to  the 
court  for  permission  to  come  in  and  defend  his  possession,  and  the  court 
would  let  him  do  so  provided  he  would  admit  that  C  had  leased  the 
land  from  A,  and  had  been  placed  in  possession,  and  had  then  been 
ousted  by  D,  and  that  D's  justification  in  so  doing  was  a  lease  under 
him  (B).  B  would  then  be  substituted  for  D  as  defendant,  and  the 
case  would  be  tried  between  C  as  tenant  of  A  and  B  in  his  own  right, 
thus  bringing  up  for  adjudication  the  respective  rights  of  A  and  B.  A, 
however,  was  never  nominally  a  party  to  the  suit.  If  C  recovered  as 
A's  tenant,  it  inured  to  A's  benefit,  but  if  C  lost  and  A  was  not  satisfied, 
all  he  had  to  do  was  to  imagine  that  he  had  leased  to  another  tenant,  and 
get  him  to  go  through  the  same  fictitious  proceedings,  and  thus  compel 
B  to  litigate  again.  This  could  be  repeated  indefinitely,  and  no  judg- 
ment rendered  against  any  one  of  A's  tenants  was  res  judicata  against  A. 

As  we  have  previously  seen,  the  Congress  of  the  Eepublic  of  Texas, 
though  adopting  the  common  law  as  the  basis  of  all  substantive 


TRESPASS    TO   TRY   TITLE. 

rights  not  directly  regulated  by  the  Constitution  and  by  acts  of 
Congress,  was  not  willing  to  adopt  the  common  law  methods  of  procedure 
in  ordinary  litigation  and  the  same  policy  prevailed  as  to  land  litigation, 
and  we  find  that  on  the  same  day  (February  5,  1840,)  that  the  general 
practice  act  for  the  district  court  was  passed  that  another  was  enacted 
which  provides:  "All  fictitious  proceedings  in  the  action  of  ejectment 
are  abolishecj.  and  the  method  of  trying  titles  to  land,  tenements,  and 
other  real  property  shall  be  the  action  of  trespass  to  try  title."1  This 
article  has  never  been  repealed  or  amended,  and  is  the  exact  language 
of  the  present  statute.2  Other  portions  of  the  original  act  have,  however, 
been  modified  and  some  of  its  provisions  have  been  entirely  omitted. 
Following  out  the  idea  that  the  plaintiff  in  ejectment  was  not  to  be 
bound  by  the  judgment  rendered  against  his  tenant,  the  act  of  1840 
allowed  -the  unsuccessful  plaintiff  to  bring  another  or  second  suit, 
provided  it  were  begun  within  one  year  after  the  final  determination  of 
the  first.  With  some  modifications  this  continued  to  be  the  law  until  the 
revision  of  1879,  when  it  was  omitted  and  in  its  stead  it  was  declared 
that  the  judgment  in  the  first  suit  should  be  res  judicata  against  the 
plaintiff  as  well  as  the  defendant.3 

The  present  statute  on  the  subject  is  as  follows: 

"Art.  5248.  All  fictitious  proceedings  in  the  action  of  ejectment 
are  abolished,  and  the  method  of  trying  titles  to  land,  tenements,  or 
other  real  property  shall  be  by  action  of  trespass  to  try  title. 

"Art.  5249.  The  trial  shall  be  conducted  according  to  the  rules  of 
pleading,  practice,  and  evidence  in  other  cases  in  the  district  court, 
and  conformably  to  the  principles  of  trial  by  ejectment,  except  as 
herein  otherwise  expressly  provided. 

"Art.  5250.     The  petition  shall  state— 

"1.  The  real  names  of  the  plaintiff  and  defendant  and  their  resi- 
dence, if  known. 

"2.  It  shall  describe  the  premises  by  metes  and  bounds,  or  with 
sufficient  certainty  to  identify  the  same,  so  that  from  such  description 
possession  thereof  may  be  delivered,  and  shall  also  state  the  county 
or  counties  in  which  the  same  is  situated. 

"3.  The  interest  which  the  plaintiff  claims  in  the  premises,  whether 
it  be  a  fee  simple  or  other  estate;  and  if  he  claims  an  undivided 
interest  he  shall  state  the  same  and  the  amount  thereof. 

"4.  That  he  was  in  possession  of  the  premises  or  entitled  to  such 
possession. 

"5.     That  the   defendant  afterward  unlawfully  entered  upon  and 

1  Acts  1840,  p.  136;  Gammel  Laws  of  Texas,  vol.  2,  p.  310. 

*Rev.  Stats.  1895,  art.  5248. 

'Acts  of  1840,  p.  137;  Rev.  Stats.  1879,  art.  4811;  1895,  art.  5275. 


TRESPASS  TO  TRY  TITLE.  407 

dispossessed  him  of  such  premises  (stating  the  date),  and  withholds 
from  him  possession  thereof. 

"6.  If  rents  and  profits  or  damages  are  claimed,  such  facts  as 
show  the  plaintiff  to  be  entitled  thereto  and  the  amount  thereof. 

"7.     It  shall  conclude  with  a  prayer  for  the  relief  sought. 

"Art.  5251.  The  plaintiff  shall  indorse  on  his  petition  that  the  action 
is  brought  as  well  to  try  the  title  as  for  damages. 

"Art.  5252.  When  a  party  is  sued  for  land  the  real  owner  or 
warrantor  may  make  himself  or  may  be  made  a  party  defendant  in  the 
suit,  and  shall  be  entitled  to  make  such  defense  as  if  he  had  been  the 
original  defendant  in  the  action. 

"Art.  5253.  When  such  action  shall  be  commenced  against  a  tenant 
in  possession  the  landlord  may  enter  himself  as  defendant  or  he  may 
be  made  a  party  on  motion  of  such  tenant,  and  he  shall  be  entitled  to 
make  the  same  defense  as  if  the  suit  had  been  originally  commenced 
against  him. 

"Art.  5254.  The  defendant  in  the  action  shall  be  the  person  in 
possession  if  the  premises  are  occupied,  or  some  person  claiming  title 
thereto  in  case  they  are  unoccupied. 

"Art.  5255.  The  plaintiff  may  join  as  a  defendant  with  the  person 
in  possession,  any  other  person  who,  as  landlord,  remainderman,  re- 
versioner,  or  otherwise,  may  claim  title  to  the  premises  or  any  part 
thereof  adversely  to  the  plaintiff. 

"Art.  5256.  The  defendant  in  such  actions  may  file  only  the  plea  of 
'not  guilty,'  which  shall  state  in  substance  that  he  is  not  guilty  of  the 
injury  complained  of  in  the  petition  filed  against  him,  except  that 
if  he  claims  an  allowance  for  improvements  he  shall  state  the  facts 
entitling  him  to  the  same  as  provided  in  the  succeeding  chapter. 

"Art.  5257.  Under  such  plea  of  'not  guilty'  the  defendant  may 
give  in  evidence  any  lawful  defense  to  the  action,  except  the  defense 
of  limitation,  which  shall  be  specially  pleaded. 

"Art.  5258.  Such  plea  or  any  other  answer  to  the  merits  shall  be  an 
admission  by  the  defendant,  for  the  purpose  of  that  action,  that  he 
was  in  possession  of  the  premises  sued  for,  or  that  he  claimed  title 
thereto  at  the  time  of  commencing  the  action,  unless  he  states  dis- 
tinctly in  his  answer  the  extent  of  his  possession  or  claim,  in  which 
case  it  shall  be  an  admission  to  such  extent  only. 

"Art.  5259.  All  certificates  for  headright,  land  scrip,  bounty  war- 
rant, or  any  other  evidence  of  right  to  land  recognized  by  the  laws  of 
this  State  which  have  been  located  and  surveyed  shall  be  deemed  and 
held  as  sufficient  title  to  authorize  the  maintenance  of  the  action  of 
trespass  to  try  title. 

"Art.  5260.  After  answer  filed,  either  party  may,  by  notice  in 
writing,  duly  served  on  the  opposite  party  or  his  attorney  of  record,  not 
less  than  ten  days  before  the  trial  of  the  cause,  demand  an  abstract 


408  TRESPASS  TO  TRY  TITLE. 

in  writing  of  the  claim  or  title  to  the  premises  in  question  upon 
which  he  relies. 

"Art.  5261.  Such  abstract  of  title  shall  be  filed  with  the  papers  of 
the  cause  within  twenty  days  after  the  service  of  the  notice,  or  within 
such  further  time  as  the  court  on  good  cause  shown  may  grant;  and  in 
default  thereof  no  evidence  of  the  claim  or  title  of  such  opposite  party 
shall  be  given  on  trial. 

''Art.  5262.  The  abstract  mentioned  in  the  two  preceding  articles 
shall  state — 

"1.  The  nature  of  each  document  or  written  instrument  intended  to 
be  used  as  evidence,  and  its  date;  or, 

"2.  If  a  contract  or  conveyance,  its  date,  the  parties  thereto,  and 
the  date  of  the  proof  or  acknowledgment,  and  before  what  officer  the 
same  was  made;  and, 

"3.     Where  recorded,  stating  the  book  and  page  of  the  record. 

"4.  If  not  recorded  in  the  county  when  the  trial  is  had,  copies  of 
such  instrument,  with  the  names  of  the  subscribing  witnesses,  shall 
be  included. 

"If  such  unrecorded  instrument  be  lost  or  destroyed,  it  shall  be 
sufficient  to  state  the  nature  of  such  instrument  and  its  loss  or 
destruction. 

"Art.  5263.  The  court  may  allow  either  party  to  file  an  amended 
abstract  of  titles,  under  the  same  rules  which  authorize  the  amend- 
ment of  pleadings  so  far  as  they  are  applicable;  but  in  all  cases  the 
documentary  evidence  of  title  shall,  at  the  trial,  be  confined  to  the 
matters  contained  in  the  abstract  of  titles. 

"Art.  5264.  The  presiding  judge  of  the  court  may,  either  in  term 
time  or  vacation,  at  his  own  discretion,  or  on  motion  of  either  party  to 
the  action,  appoint  a  surveyor,  who  shall  survey  the  premises  in  con- 
troversy pursuant  to  the  order  of  the  court,  and  report  his  action 
under  oath  to  such  court;  and  if  the  said  report  be  not  rejected  for 
good  cause  shown,  the  same  shall  be  admitted  as  evidence  on  the 
trial. 

"Art.  5265.  Where  there  is  no  dispute  as  to  the  lines  or  boundaries 
of  the  land  in  controversy,  or  where  the  defendant  admits  that  he 
is  in  possession  of  the  lands  or  tenements  included  in  the  plaintiff's 
claim  or  title,  an  order  of  survey  shall  be  unnecessary. 

"Art.  5266.  It  shall  not  be  necessary  for  the  plaintiff  to  deraign 
title  beyond  a  common  source,  and  proof  of  a  common  source  may  be 
made  by  the  plaintiff  by  certified  copies  of  the  deeds  showing  a 
chain  of  title  to  the  defendant  emanating  from  and  under  such  common 
source;  but  before  any  such  certified  copies  shall  be  read  in  evidence 
they  shall  be  filed  with  the  papers  of  the  suit  three  days  before  the  trial, 
and  the  adverse  party  served  with  notice  of  such  filing  as  in  other 
cases;  provided,  that  such  certified  copies  shall  not  be  evidence  of  title 


TRESPASS  TO  TRY  TITLE.  409 

in  the  defendant  unless  offered  in  evidence  by  him,  and  the  plaintiff 
shall  not  be  precluded  from  making  any  legal  objection  to  such  certified 
copies  or  the  originals  thereof  when  introduced  by  the  defendant. 

"Art.  5267.  If  the  defendant,  Avho  has  been  personally  served  with 
citation  according  to  law,  fails  to  appear  and  answer  by  himself  or 
attorney  within  the  time  prescribed  by  law  for  other  actions  in  the 
district  court,  the  proper  judgment  by  default  may  be  entered  against 
him  and  in  favor  of  the  plaintiff  for  the  title  to  the  premises  or  the 
possession  thereof,  or  for  both,  according  to  the  petition,  and  for  all 
costs,  without  any  proof  of  title  to  the  plaintiff. 

"Art.  5268.  If  the  defendant  has  been  cited  only  by  publication,  and 
fails  to  appear  and  answer  by-  himself,  or  by  attorney  of  his  own 
selection,  or  if  any  defendant  having  answered,  fails  to  appear  by  him- 
self or  attorney  when  the  case  is  called  for  trial  on  its  merits,  the 
plaintiff  shall  make  such  proof  as  will  entitle  him  prima  facie  to  recover, 
whereupon  the  proper  judgment  shall  be  entered. 

"Art.  5269.  Where  the  defendant  claims  part  of  the  premises  only, 
the  answer  shall  be  equivalent  to  a  disclaimer  of  the  balance. 

"Art.  5270.  Where  the  defendant  claims  the  whole  premises,  and 
the  plaintiff  shows  himself  entitled  to  recover  part,  the  plaintiff  shall 
recover  such  part  and  costs. 

"Art.  5271.  When  there  are  two  or  more  plaintiffs  or  defendants, 
any  one  or  more  of  the  plaintiffs  may  recover  against  any  one  or  more 
of  the  defendants  the  premises  or  any  part  thereof,  or  any  interest 
therein,  or  damages,  according  to  the  rights  of  the  parties. 

"Art.  5272.  Upon  the  finding  of  the  jury,  or  of  the  court  where 
the  case  is  tried  by  the  court,  in  favor  of  the  plaintiff  for  the  whole 
or  any  part  of  the  premises  in  controversy,  the  judgment  shall  be 
that  the  plaintiff  recover  of  the  defendant  the  title  or  possession,  or 
both,  as  the  case  may  be,  of  such  premises,  describing  them,  and, 
where  he  recovers  the  possession,  that  he  have  his  writ  of  possession. 

"Art.  5273.  Where  it  is  alleged  and  proved  that  one  of  the  parties 
is  in  possession  of  the  premises  the  court  or  jury,  if  they  find  for 
the  adverse  party,  shall  assess  the  damages  for  the  use  and  occupation 
of  the  premises,  and  if  special  injury  to  the  property  be  alleged  and 
proved,  the  damages  for  such  injury  shall  also  be  assessed,  and  the 
proper  judgment  shall  be  entered  therefor,  on  which  execution  may 
issue,  but  damages  shall  not  be  assessed  under  this  article  for  use  and 
occupation  or  for  injuries  done  over  two  years  prior  to  the  commence- 
ment of  the  suit. 

"Art.  5274.  When  the  defendant  or  person  in  possession  has  claimed 
an  allowance  for  improvements  in  accordance  with  the  provisions  of  the 
succeeding  chapter,  the  claim  for  use  and  occupation  and  damages 
mentioned  in  the  preceding  article  shall  be  considered  and  acted  on  in 
connection  with  such  claim  by  the  defendant  or  person  in  possession. 


410  TRESPASS  TO  TRY  TITLE. 

"Art.  5275.  Any  final  judgment  rendered  in  any  action  for  the 
recovery  of  real  estate  hereafter  commenced  shall  be  conclusive  as  to 
the  title  or  right  of  possession  established  in  such  action  upon  the 
party  against  whom  it  is  recovered,  and  upon  all  persons  claiming 
from,  through,  or  under  such  party,  by  title  arising  after  the  com- 
mencement of  such  action. 

"Art.  5276.  Nothing  under  this  title  shall  be  so  construed  as  to 
alter,  impair  or  take  away  the  right  of  parties,  as  arising  under  the 
laws  in  force  before  the  introduction  of  common  law,  but  the  same 
shall  be  decided  by  the  principles  of  the  law,  or  laws  under  which 
the  same  accrued,  or  by  which  the  same  were  regulated  or  in  any 
manner  affected. 

"Art.  5277.  The  defendant  in  any  action  of  trespass  to  try  title 
may  allege  in  his  pleadings  that  he  and  those  under  whom  he 
claims  have  had  adverse  possession  in  good  faith  of.  the  premises 
in  controversy  for  at  least  one  year  next  before  the  commencement 
of  such  suit,  and  that  he  and  those  under  whom  he  claims  have  made 
permanent  and  valuable  improvements  on  the  lands  sued  for  during  the 
time  they  have  had  such  possession,  stating  the  improvements  and 
their  value  respectively,  and  stating  also  the  grounds  of  such  claim. 

"Art.  5278.  Where  the  defendant  has  filed  his  claim  for  allow- 
ance for  improvements  in  accordance  with  the  preceding  articles,  if 
the  court  or  .jury  find  that  he  is  not  the  rightful  owner  of  the  premises 
sued  for,  but  that  he  and  those  under  whom  he  claims  have  made 
permanent  and  valuable  improvements  thereon,  being  possessors  thereof 
in  good  faith,  the  court  or  jury  shall  at  the  same  time  estimate  from 
the  testimony — 

"1.  The  value  at  the  time  of  trial  of  such  improvements  as  were  so 
made  before  the  filing  of  the  suit,  not  exceeding  the  amount  to  which  the 
value  of  the  premises  is  actually  increased  thereby. 

"2.  The  value  of  the  use  and  occupation  of  the  premises  during  the 
time  the  defendant  was  in  possession  thereof  (exclusive  of  the  im- 
provements thereon  made  by  himself  or  those  under  whom  he  claims) 
and  also,  if  authorized  by  the  pleadings,  the  damages  for  waste  or  other 
injury  to  the  premises  committed  by  him,  not  computing  such  annual 
value  for  a  longer  time  than  two  years  before  suit,  nor  damages  for 
waste  or  injury  done  before  said  two  years. 

"3.  The  value  of  the  premises  without  the  improvements  made 
as  aforesaid. 

"Art.  5279.  If  the  sum  estimated  for  the  improvements  ex- 
ceeds the  damages  estimated  against  the  defendant  and  the  value 
of  the  use  and  occupation  as  aforesaid,  there  shall  then  be  estimated 
against  him,  if  authorized  by  the  testimony,  the  value  of  the  use  and 
occupation  and  the  damages  done  by  him  or  those  under  whom  he 
claims,  for  any  time  before  the  said  two  years,  so  far  as  may  be 


TRESPASS  TO  TRY  TITLE.  411 

necessar}r  to  balance  the  claim  for  improvements,  but  no  further ;  and  he 
shall  not  be  liable  for  the  excess,  if  any,  beyond  the  value  of  the 
improvements. 

"Art.  5280.  If  it  shall  appear  from  the  finding  of  the  court 
or  jury,  under  the  two  preceding  articles,  that  the  estimated  value 
of  the  use  and  occupation  and  damages  exceed  the  estimated  value 
of  the  improvements,  judgment  shall  be  entered  for  the  plaintiff 
for  the  excess  and  costs  in  addition  to  a  judgment  for  the  premises; 
but  should  the  estimated  value  of  the  improvements  exceed  the  esti- 
mated value  of  the  use  and  occupation  and  damages,  judgment  shall 
be  entered  for  the  defendant  for  the  excess. 

"Art.  5281.  In  any  action  of  trespass  to  try  title  when  the 
lands  or  tenements  have  been  adjudged  to  the  plaintiff,  and  the 
estimated  value  of  improvements  in  excess  of  the  value  of  the  use 
and  occupation  and  damages  has  been  adjudged  to  the  defendant,  no 
writ  of  possession  shall  be  issued  for  the  term  of  one  year  after  the 
date  of  the  judgment,  unless  the  plaintiff  shall  pay  to  the  clerk  of 
the  court  for  the  defendant  the  amount  of  such  judgment  in  favor  of  the 
defendant,  with  interest  thereon. 

"Art.  5282.  If  the  plaintiff  shall  neglect  for  the  term  of  one 
year  to  pay  over  the  amount  of  said  judgment  in  favor  of  the 
defendant,  with  interest  thereon,  as  directed  in  the  preceding  article, 
and  the  defendant  shall,  within  six  months  after  the  expiration  of 
said  year,  pay  to  the  clerk  of  the  court  for  the  plaintiff  the  value  of 
the  lands  or  tenements  without  regard  to  the  improvements,  as  esti- 
mated by  the  court  or  jury,  then  the  plaintiff  shall  be  forever  barred 
of  his  writ  of  possession,  and  from  ever  having  or  maintaining  any  action 
whatever  against  the  plaintiff,  his  heirs  or  assigns,  for  the  lands  or  tene- 
ments recovered  by  such  suit. 

"Art.  5283.  If  the  defendant  or  his  legal  representative  shall 
nor,  within  the  six  months  aforesaid,  pay  over  to  the  clerk  for  the 
plaintiff  the  estimated  value  of  the  lands  or  tenements,  as  directed 
in  the  preceding  article,  then  the  plaintiff  may  sue  out  his  writ  of 
possession  as  in  ordinary  cases. 

"Art.  5284.  The  judgment  or  decree  of  the  court  shall  recite 
the  estimated  value  of  the  premises  without  the  improvements,  and 
shall  also  include  the  conditions,  stipulations,  and  directions  contained 
in  the  three  preceding  articles,  so  far  as  they  may  be  applicable  to  the 
case  before  the  court. 

"Art.  5285.  Whenever  payments  shall  be  made  to  the  clerk 
of  the  court  by  the  plaintiff  or  defendant,  as  provided  in  the  preceding 
articles,  it  shall  be  the  duty  of  such  clerk  to  enter  a  memorandum  of  such 
payment,  with  the  date  thereof,  on  the  page  of  the  record  on  which  the 
judgment  was  entered;  and  he  shall,  on  demand,  pay  over  the  money 


412  TRESPASS  TO  TRY  TITLE. 

to  the  party  entitled,  taking  his  receipt  therefor,  dated  and  signed  on 
the  page  of  the  record  aforesaid." 

Concerning  the  effect  of  these  statutes  the  Supreme  Court  has  used 
the  following  language :  "The  most  marked  changes  made  on  this  sub- 
feet  by  the  Revised  Statutes  are  these: 

"1.  The  provisions  for  a  second  suit  by  the  plaintiff  (Paschal's 
Digest,  articles  5298,  5299,)  are  abolished,  and  the  plaintiff  and  de- 
fendant are  placed  on  the  same  footing,  making  the  first  judgment 
final,  etc.  Art.  4811,  Rev.  Stats. 

"2.  Plaintiff  may  recover  for  use  and  occupation,  and  for  damages 
where  the  right  of  action  to  recover  such  rents  anfl  damages  accrued 
within'  two  years  prior  to  the  suit. 

"3.  The  provisions  relating  to  the  payment  of  taxes,  and  the 
proof  thereof  (article  5306,  Paschal's  Digest),  are  abolished,  as  the 
question  of  payment  and  collection  of  taxes  should  be  left  alone  to  the 
tax  laws  of  the  State. 

"4.  The  assessment  of  the  value  of  the  use  and  occupation  is  re- 
quired to  be  exclusive  of  the  improvements  made  by  the  defendant.  Art. 
4814,  Rev.  Stats. 

"5.  The  articles  authorizing  either  party  to  require  of  the  other  to 
file  an  abstract  of  the  title  relied  upon  are  supplied.  Report  of  Com. 
Rev.  Stats.,  p.  32. 

"There  are  also  to  be  found  a  few  other  verbal  alterations,  not  import- 
ant enough  to  require  notice."4 


NATURE  AND  SCOPE  OF  THE  ACTION. 

The  Supreme  Court  of  the  State  has  said:5  "Our  action  of  trespass 
to  try  title  is  intended  to  serve  all  the  purposes  of  an  action  of  eject- 
ment as  known  to  the  law  of  England  and  other  States.  Wherever 
ejectment  will  lie  at  common  law,  trespass  to  try  title  may  be  used 
under  our  statutes.  It  is  in  its  nature  a  suit  to  recover  possession  of 
land  unlawfully  withheld  from  the  owner  and  to  which  he  has  the 
right  of  immediate  possession.  It  is  not  important  so  far  as  the 
right  to  the  action  is  concerned  whether  the  defendant  is  upon  the 
property  under  a  claim  of  title  or  is  a  naked  trespasser.  It  is  enough 
that  he  is  there  without  authority.  If  the  defendant  is  not  in  posses- 
sion, then  he  must  set  up  a  claim  to  the  land  in  order  to  justify  the 
proceeding ;  but  if  in  possession,  how  he  came  there  becomes  unimportant 
if  the  occupancy  is  illegal.  This  is  the  rule  in  actions  of  ejectment  and 

4  Sowers  v.  Peterson,  59  Texas,  221. 
8  Hays  v.  Railway  Co.,  62  Texas,  397. 


PLAINTIFF'S  PLEADINGS.  413 

is  to  be  inferred  from  the  very  language  of  our  statutes  regulating 
the  action  of  trespass  to  try  title." 

From  the  statutes  and  decisions  we  may  say  that  the  action  of  tres- 
pass to  try  title  is:  A  statutory  action  in  which  anyone  having  title 
to  real  estate,  which  entitles  him  to  the  immediate  possession  thereof, 
may  establish  such  right  and  secure  the  enjoyment  of  it  against  anyone 
-adversely  in  possession  thereof  or  adversely  asserting  title  or  claim 
thereto;  and  in  which  damages  for  use  and  occupation  thereof  and  for 
waste  may  be  recovered ;  and  in  which  compensation  for  permanent  and 
valuable  improvements  made  on  the  land,  in  good  faith,  by  the  party 
in  possession  or  his  privies  in  estate  may  be  allowed. 


PLAINTIFF'S  PLEADINGS. 

By  reference  to  th,e  statute  above  quoted  it  will  be  seen  that  the 
provisions  as  to  pleading  in  this  action  are  very  simple.  The  marginal 
venue,  term  of  court,  address,  and  commencement  are  just  the  same  as 
in  other  cases,  and  the  rules  governing  the  statement  of  the  cause  of 
action  are  the  same ;  that  is,  the  plaintiff  must  show  his  right  in  the  thing 
sued  for,  and  the  defendant's  violation  of  that  right ;  from  this  the  law 
will  presume  some  damage,  and  would  entitle  him  to  recover  the  land, 
nominal  damages,  and  costs.  If  the  plaintiff  desires  further  damages  for 
use  and  occupation  or  injury  to  the  property,  he  must  set  up  the  facts 
on  which  his  claims  are  based,  the  amount  he  demands,  and  conclude 
with  appropriate  prayer  for  relief. 

Judge  Gould,  in  Bridges  v.  Cundiff,6  speaking  of  the  petition  in  that 
.suit  and  its  sufficiency,  says:  "In  May,  1859,  Jackson  and  James 
Bridges  filed  their  petition  alleging  themselves  to  be  the  legal  and 
rightful  owners  of  an  equal  undivided  half  of  a  certain  league  and 
labor  of  land,  and  that  on  April  9,  1856,  they  were  legally  seized  of  and 
possessed  of  the  same;  that  afterwards,  on  the  day  last  named,  Jesse 
Dusen,  who  is  made  defendant,  set  up  some  claim  thereto,  disturbed  their 
peaceful  possession,  and  from  that  time  kept  petitioners  from  the 
possession  thereof.  They  prayed  judgment  for  possession;  that  the 
cloud  cast  on  their  title  by  Dusen's  claim  be  removed ;  that  their  interest 
in  said  land  be  set  apart  to  them  by  partition;  their  title  quieted  and  for 
general  relief."  *  *  *  "Enough  of  the  original  petition  has  been 
given  to  show  that  it  contained  all  the  essentials  of  an  action  of  trespass 
to  try  title." 

In  Evans  v.  Womack,7  Judge  Koberts  says:     "The  exception   to   the 

9  Bridges  v.  Cundiff,  45  Texas,  440. 
'  Evans  v.  Womack,  48  Texas,  230. 


414  TRESPASS  TO  TRY  TITLE. 

petition  was  general.  The  objection  raised  in  the  assignment  of 
error  is  that  it  fails  to  allege  that  the  plaintiff  was  the  owner 
of  the  land  in  controversy  at  the  date  of  the  institution  of  the 
suit.  The  words  of  the  petition  are  as  follows,  to  wit:  'Plain- 
tiff alleges  that  on  the  18th  day  of  January,  A.  D.  1873,  he  was 
lawfully  seized  and  possessed  of  the  tract  of  land  hereinafter  described, 
situated  in  said  county  of  Hopkins,  holding  the  same  in  fee  simple; 
that  on  the  12th  day  of  March,  1875,  defendant  entered  upon  said 
premises,  and  ejected  plaintiff  therefrom,  and  unlawfully  withholds 
from  the  plaintiff  the  possession  thereof,  to  his  damage  five  hundred 
dollars;  that  the  premises  so  entered  upon,  and  unlawfully  withheld  by 
defendant  from  plaintiff,  are  bounded  and  described  as  follows,  to  wit/ 
etc.  The  indorsement  on  the  petition  shows  that  it  is  an  action  of 
trespass  to  try  title,  which  is  a  form  of  action  substituted  by  our 
statute  for  the  action  of  ejectment.  The  suit  was  brought  on  the  12th 
of  August,  1875. 

"If  the  plaintiff,  as  he  says,  was  seized  of  the  land  in  fee  simple  on 
the  day  before  the  suit  was  brought,  and  defendant  dispossessed  him, 
and  unlawfully  withheld  the  possession  from  him,  to  his  damage  five 
hundred  dollars,  it  follows,  by  reasonable  intendment  from  this  mode 
of  expression,  that  plaintiff  continued  to  be  the  owner  of  the  premises 
up  to  the  time  of  bringing  the  suit,  and  that  is  certainly  sufficient  on  gen- 
eral exception.  Besides,  this  is  a  mere  form  of  action,  the  only  one 
prescribed  in  our  system  of  pleading;  and  to  show  when  it  is  designed  to 
be  used  as  a  form  only,  substituted  for  an  action  of  ejectment  to 
try  the  title  to  the  land,  the  statute  requires  the  attorney  to  indorse  on 
the  petition  that  the  action  is  brought  to  try  the  title  as  well  as  for 
damages,  which  was  done  in  this  case. 

"The  form  of  the  action  of  trespass  quare  clausum  fregit,  as  given  in 
Stephens  on  Pleading,  is  as  follows,  to  wit :  'For  that  the  said  defendant, 
heretofore,  to  wit,  on  the  -  -  day  of  -  — ,  A.  D.  -  — ,  with  force 

and  arms,  broke  and  entered  the  close  of  said  plaintiff,  called , 

situate,'  etc.  (Page  39.) 

"This  might  be  subjected  to  the  criticism  that  the  close  might  have 
belonged  to  the  plaintiff  heretofore,  and  not  then  when  the  suit  was 
brought. 

"If  this  were  not  merely  a  form  of  action  to  try  the  title,  but  in 
it  the  plaintiff  was  required,  as  he  is  in  other  actions,  to  state  the 
facts  constituting  his  cause  of  action,  still  it  is  not  a  sort  of  pleading, 
under  any  known  system,  that  is  required  to  be  'certain,  to  a  certain 
intent,  in  every  particular/  accordingly  as  these  terms  are  understood  in 
pleading  at  common  law/'8 

•  See  also  Rains  v.  Wheeler,  76  Texas,  390,  13  S.  W.,  324. 


PLAINTIFF'S  PLEADINGS.  415 

These  cases  show  that  no  technical  niceties  are  to  be  observed  in 
passing  on  the  petition.  Still  it  may  be  well  to  consider  the  several 
sections  of  the  statute  relating  to  the  setting  out  of  the  cause  of  action, 
and  ascertain  what  construction  has  been  placed  upon  them.  The 
changes  of  importance  made  in  this  action  by  the  revision  of  1879 
are  enumerated  in  Sowers  v.  Peterson,9  which  should  be  carefully 
consulted. 


Description  of  Land. 

First  in  order  is  the  requirement  as  to  the  description  of  the  premises. 
It  is  as  follows:  "It  [the  petition]  shall  describe  the  premises  by 
metes  and  bounds  or  with  sufficient  certainty  to  identify  same,  so  that 
from  such  description  possession  thereof  may  be  delivered,  and  shall 
also  state  the  county  or  counties  in  which  the  same  is  situated."9a 

The  description  of  the  land  sued  for  should  be  so  specific  and  certain 
that  there  can  be  no  doubt  as  to  the  exact  parcel  claimed.  This 
description  must  form  a  proper  basis  first,  for  proof  of  the  exact  land 
sued  for;  second,  for  the  proper  description  in  the  judgment;  and 
third,  for  similar  description  in  the  writ  of  possession  which  the  court 
may  oder  issued.  It  should  not  be  indefinite,  leaving  the  parties  charged 
with  the  responsibility  of  trying  the  case  and  carrying  out  the  judg- 
ment in  doubt  as  to  the  identity  of  the  thing  with  which  they  have 
to  deal.  It  has  been  held  that  this  may  be  done  by  reference  to  deeds 
which  describe  the  land  properly,  but  this  is  not  good  practice.10 

In  cases  in  which  the  description  in  the  title  papers  is  accurate  and 
the  calls  consistent  and  correct,  there  can  be  but  little  difficulty  in 
inserting  this  description  in  the  petition.  When  this  is  not  the  case, 
and  the  calls  in  the  title  papers  are  doubtful,  or  the  objects  called 
for  therein  are  not  to  be  found  as  set  out,  either  because  of  original 
error  or  because  of  subsequent  change,  so  that  the  land  really  claimed 
and  sought  to  be  recovered  does  not  at  the  time  the  suit  is  brought 
accurately  correspond  with  the  description  in  the  title  papers,  the 
petition  should  properly  and  accurately  describe  the  land  by  the  field 
notes  and  calls  as  they  then  exist,  so  that  it  may  be  readily  identified  by 
the  calls  in  the  petition,  and  should  further  allege  that  this  is  the 
true  and  correct  description  of  the  land  owned  by  the  plaintiff  and 
described  in  his  title  deeds,  making  the  necessary  statements  and 

"59  Texas,  221. 

9a  Rev.  Stats.  1895,  art.  5250,  clause  2. 

"Steinbeck  v.  Stone,  53  Texas,  385;  Curtis  v.  Douglas,  79  Texas,  167,  15  S. 
W.,  154. 


416  TRESPASS   TO    TRY   TITLE. 

explanations  to  show  the  identity  of  the  two  tracts  thus  differently 
described.11 

When  the  defendant  claims  or  is  in  possession  of  only  a  portion 
of  the  tract  owned  by  the  plaintiff,  it  is  better  practice  for  the  plaintiff 
to  describe  and  sue  for  only  the  part  in  dispute,  so  that  if  the  defendant 
should  plead  not  guilty  and  by  any  unforeseen  circumstance  the  plain- 
tiff should  fail  to  recover,  he  would  not  jeopardize  the  title  to  the  un- 
disputed balance  of  the  land.  This  can  be  done  without  difficulty,  as 
it  has  been  repeatedly  held  that  if  suit  is  brought  for  a  tract  of  land 
properly  described,  the  petition  may  be  sustained  by  proof  of  title  to  a 
larger  tract  including  that  sued  for,  and  that  no  objection  to  the 
testimony  on  account  of  variance  can  be  sustained  on  this  ground. 

A  petition  claiming  in  severalty  an  undescribed  portion  of  a  desig- 
nated tract,  as  three  hundred ,  and  twenty-seven  acres,  part  of  a  six 
hundred  and  forty  acre  survey,  is  bad.  If  it  claimed  an  undivided  in- 
terest equal  to  so  many  acres,  the  petition  might  possibly  be  good.12  . 

A  misdescription  of  the  land  in  the  petition  may  be  cured  by  amend- 
men  as  other  defects.13 


Plaintiff's  Interest. 

The  next  requirement  is  that  the  petition  should  show  "the  interest 
which  the  plaintiff  claims  in  the  premises,  whether  it  be  fee  simple  or 
some  other  estate;  and  if  he  claims  an  undivided  interest  he  shall 
state  the  same  and  the  amount  thereof."14 

This  does  not  mean  that  the  plaintiff  shall  plead  the  facts  which 
evidence  his  title,  nor  how  or  through  whom  same  was  acquired,  but  that 
he  shall  allege  his  estate  as  it  exists, — thus,  if  he  claims  a  fee  simple, 
he  shall  so  aver;  if  a  leasehold,  he  shall  allege  that  fact.15 

Prior  to  the  revision  of  1879,  when  the  language  above  quoted  was 
first  adopted,  it  was  held  in  many  cases  that  one  owning  only  an 
undivided  interest  in  land  could  sue  alleging  ownership  generally  in 
himself,  and  recover  on  proof  of  his  undivided  interest.16 

The  most  obvious  construction  of  this  statute  would  seem  to  change 


"Roche  v.  Lovell,  74  Texas,  191,  11  S.  W.,  1079;  Gray  v.  Kaufman,  82  Texas, 
«8,  17  S.  W.,  513. 

"  Halley  v.  Fontaine,  33  S.  W.,  260. 
"Hunter  v.  Morse,  49  Texas,  219. 
"  Rev.  Stats.  1895.  art.  5250,  clause  3. 
"Parks  v.  Caudle,  58  Texas,  216. 

"Hutchins  v.  Bacon,  46  Texas,  414;  Croft  v.  Rains,  10  Texas,  523;  Watrous  v. 
McGrew.  16  Texas,  510;  Grassmeyer  v.  Beeson,  18  Texas,  766;  Read  v.  Allen,  56 
Texas,  176. 


PLAINTIFF'S  PLEADINGS.  417 

this  rule,  and  this  was  intimated  in  one  case  which  came  up  soon  after 
the  passage  of  the  law,  but  which  did  not  directly  involve  the  point.17 
When,  however,  the  question  was  presented  for  actual  adjudication  the 
court  took  the  opposite  view  and  held  that  the  revision  made  no  change 
in  the  old  rule.  This  decision  has  been  followed  continuously  since.18 

The  title  need  not  be  a  fee  simple;  the  plaintiff  can  maintain  this 
action  on  a  lease  for  years  or  other  estate  less  than  a  fee,  if  the  other 
necessary  facts  concur.10 

While  it  is  true  that  the  plaintiff  is  not  required  to  plead  his  title 
specifically,  but  can  under  the  general  allegation  of  ownership  prove 
any  facts  which  constitute  title  in  himself,  still  if  he  elects  to  set  up 
the  title  under  which  he  claims,  these  specific  allegations  will  limit 
and  control  the  general  averments;  if  the  specific  allegations  are  not 
legally  sufficient  to  show  that  the  plaintiff  is  the  owner,  the  petition  will 
be  bad  on  demurrer;  and  if  they  do  show  title  in  him,  then  he  must 
prove  and  recover  on  the  very  facts  alleged,  and  any  material  variance 
from  them  will  be  fatal.20  A  careful  attorney  will  seldom  find  it  de- 
sirable to  set  up  the  particular  facts,  but  will  rest  upon  the  general 
allegations  of  title. 


Possession  by  the  Plaintiff. 

The  next  allegation  specified  by  the  statute  is  "that  he  (the  plaintiff) 
was  in  possession  of  the  premises  or  was  entitled  to  such  possession." 

In  the  case  of  the  Day  Land  and  Cattle  Company21  against  the 
State,  there  were  no  averments  of  possession  or  right  to  possession  by 
the  State,  which  was  plaintiff  below.  A  special  demurrer  was  urged 
on  that  account.  The  Supreme  Court  says :  "The  petition  alleged  that 
the  lands  belonged  to  the  State;  that  they  are  claimed  by  the  defend- 
ant, and  gives  the  origin  and  nature  of  the  claim  thus  asserted.  It  pray? 
for  general  relief,  and  that  the  patents  under  which  the  defendant 
claims  be  canceled,  and  the  cloud  thereby  placed  on  the  State's  title 
it  asks  to  have  removed.  The  first,  second,  and  third  requirement 

17  Sowers  v.  Peterson,  59  Texas.  216. 

"Pilcher  v.  Kirk,  60  Texas,  162;  Ryan  v.  Porter.  61  Texas,  106;  Schmidt  v. 
Talbert,  74  Texas,  451,  12  S.  W.,  284;  Murrell  v.  Wright,  78  Texas,  519,  15  S. 
W.,  156. 

"Thurber  v.  Connors,  57  Texas,  96. 

20  Hughes  v.  Lane,  6  Texas,  289 ;  Turner  v.  Ferguson,  39  Texas,  505 ;  Pilcher  v. 
Kirk,  55  Texas,  208;  Montgomery  v.  Carlton,  56  Texas,  361;  Edwards  v.  Barwise, 
69  Texas,  84,  6  S.  W.,  677 ;  Macdonald  v.  Bank,  74  Texas,  539,  12  S.  W.,  233. 

21  Day  Land  and  Cattle  Co.  v.  State,  68  Texas,  526,  4  S.  W.,  865. 

27 — Pleadings. 


418  TRESPASS  TO  TRY  TITLE. 

in  a  petition  are  fully  complied  with.  The  petition  states  facts  which, 
if  the  grants  through  which  the  defendant  claims  are  invalid,  entitle 
the  State  to  the  possession,  and  that  there  was  not  an  averment,  in  terms, 
that  the  State  was  so  entitled,  is  a  matter  of  no  importance."  This  is 
referred  to  with  approval  in  Tevis  v.  Armstrong.22 


Wrong  by  the  Defendant. 

"That  the  defendant  afterward  unlawfully  entered  upon  and  dis- 
possessed him  of  such  premises  (stating  the  date),  and  withholds  from 
him  the  possession  thereof." 

This  language  seems  mandatory  and  hence  it  might  readily  be  con- 
cluded that  unless  the  averment  of  ouster  of  plaintiff  by  defendant 
was  made  the  suit  could  not  be  the  statutory  action  of  trespass  to  try 
title,  but  the  decisions  do  not  bear  out  this  construction.  On  the 
contrary  they  hold  that  a  constructive  ouster,  so  to  speak,  by  asserting 
adverse  claim  to  the  land,  though  unaccompanied  by  actual  possession  by 
the  defendant,  is  sufficient.23  The  petition  must,  however,  contain  one 
or  the  other  or  both  of  these  charges.24 


Rents  and  Profits,  and  Damages. 

"If  rents  and  profits  or  damages  are  claimed,  such  facts  as  show 
the  plaintiff  to  be  entitled  thereto  and  the  amount  thereof." 

The  allegations  as  to  the  ownership  by  the  plaintiff  and  ouster  and 
possession  by  the  defendant,  of  course,  need  not  be  repeated  in  con- 
nection with  the  claim  for  damages.  This  clause  only  requires  appro- 
priate additional  allegations  as  to  the  reasonable  rental  value  of  the 
land,  and  facts  constituting  waste,  etc. ;  the  general  damages  resulting 
from  the  invasion  of  the  premises  need  not  be  specially  alleged,  but  it  is 
well  to  be  specific  as  to  particular  injuries. 

In  Biencourt  v.  Parker23  the  plaintiff  alleged  ouster  by  the  defendants 
on  August  1,  1852,  and  then  alleged  "that  the  defendants  had  ever 
since  continued  such  wrongful  possession,  taking  and  receiving  the 
fruits  and  profits  of  the  land  to  the  'value  of  one  thousand  dollars  by  the 
year,  and  other  wrongs  then  and  there  did,  to  the  damage  of  your 

22  Tevis  v.  Armstrong,  71  Texas,  62,  9  S.  W.,  134. 

23  Day  Land  and  Cattle  Co.  v.   State,  68  Texas,  526,  4  S.  W.,  865 ;   Rains  v. 
Wheeler,  76  Texas,  390,  13  S.  W.,  324;  Moody  v.  Halcomb,  26  Texas,  719;  Titus 
v.  Johnson,  50  Texas,  237;  Edrington  v.  Butler,  33  S.*W.,  143. 

"Nye  v.  Hawkins,  65  Texas,  600;  Heath  v.  Bank,  32  S.  W.,  778. 
25  Biencourt  v.  Parker,  27  Texas,  558. 


PLAINTIFF'S  PLEADINGS.  419 

petitioner  five  hundred  dollars/'  Prayer  was  for  "their  damages  afore- 
said, mesne  profits,  and  costs  of  suit,"  etc. 

There  was  verdict  and  judgment  for  the  plaintiff  for  one-half  of  the 
land  and  six  hundred  dollars  damages.  In  passing  on  the  question  of 
damages  the  Supreme  Court  says: 

"The  petition  alleges  the 'use  and  occupation  of  the  premises  in  dis- 
pute to  be  of  the  yearly  value  of  one  thousand  dollars,  and  also  charges 
damages  by  reason  of  the  wrongful  and  forcible  possession  taken  thereof 
by  the  defendants.  The  prayer  for  judgment  in  the  petition  embraces 
both  of  these  grounds.  Mesne  profits  are  recoverable  in  actions  of  this 
kind,  which  are  brought  as  well  to  try  title  as  to  recover  damages,  as 
a  part  of  the  plaintiff's  damages.  That  they  are  not  so  called  in  direct 
terms  in  the  petition,  is  no  reason  why  they  should  not  be  thus  de- 
nominated in  the  verdict,  and  it  should  not  on  this  account  be  set 
aside,  when  the  testimony,  as  in  this  case,  shows  the  amount  of  the 
money  verdict  was  not  larger  than  the  plaintiff  was  entitled  to  recover." 

In  the  case  of  Ammons  v.  Dwyer,26  the  plaintiff  charged  a  trespass 
by  the  defendant  resulting  in  her  damage  five  thousand  dollars.  The 
defendant  plead  improvement  in  good  faith.  In  submitting  the  case 
to  the  jury,  the  judge  instructed  them  to  allow  rents,  in  connection  with 
the  claim  for  improvements.  To  this  the  defendant  objected  because  the 
plaintiff's  petition  did  not  ask  for  rents.  The  court  held  that  the  plead- 
ings taken  together  were  sufficient  to  justify  the  submission  of  the  issue 
and  sustained  the  judgment. 

O'Conner  v.  Luna27  was  an  action  of  trespass  to  try  title  in  regular 
form.  The  defendant  plead  "not  guilty."  No  evidence  of  actual  occu- 
pancy by  the  defendn^t  was  offered.  The  lower  court  held  the  effect  of 
the  statutory  plea  of  "not  guilty"  was  an  admission  by  the  defendant 
of  actual  occupancy,  and  gave  judgment  for  the  rent  of  the  land 
pending  the  litigation.  The  Supreme  Court  reviewed  the  statutes  on 
the  subject,  and  held  as  follows:  "We  think  the  necessary  construc- 
tion of  these  provisions  is  that  the  admission  of  possession  by  the 
answer  authorizes  only  a  recovery  of  the  title  and  possession  of  the 
land,  but  that  damages  for  the  use  and  occupancy  of  the  premises  can  be 
recovered  only  when  the  facts  authorizing  such  recovery  are  alleged  and 
proved  as  other  issues  are  required  to  be." 


Indorsement  on  Petition. 

In  addition  to  the  indorsement  required  on  other  original  petitions 
showing  the  style  and  number  of  the  case,  the  name  of  the  pleading, 

M  Ammons  v.  Dwyer,  78  Texas,  639,  15  S.  W.,  1049. 
"O'Conner  v.  Luna,  75  Texas,  592,  12  S.  W.,  1125. 


420  TRESPASS  TO  TRY  TITLE. 

date  of  filing,  etc.,  the  statute  requires  the  plaintiff  in  trespass  to  try 
title  to  indorse  thereon  "that  the  action  is  brought  as  well  to  try  title 
as  for  damages."  This  requirement  is  a  matter  of  form,  and  its  omission 
can  not  be  reached  by  general  demurrer  or  objection  to  testimony  or 
motion  in  arrest  of  judgment,  or  for  the  first  time  on  appeal.28  If  it 
is  pointed  out  by  special  exception,  the  exception  should  be  sustained, 
but  failure  to  do  so  unaccompanied  by  other  error  will  not  necessitate 
or  justify  a  reversal.29 


Joinder  of  Other  Causes  of  Action  With  This. 

In  this  action  the  plaintiff  may  join  a  prayer  for  partition  provided 
he  have  all  necessary  parties  before  the  court,  and  make  the  proper 
allegations.30 

So  also  of  foreclosure  liens.  If  the  plaintiff  have  a  conveyance .  of 
the  land  sued  for  from  the  defendant,  which  the  plaintiff  claims  to  be 
a  deed,  but  which  he  knows  the  defendant  insists  is  a  mortgage,  the 
plaintiff  can  sue  in  trespass  to  try  title  for  the  land,  and  in  addition 
can  set  out  the  facts  entitling  him  to  foreclose  the  mortgage,  in  the 
event  the  court  shall  find  the  instrument  to  be  a  mortgage,  and  pray  in 
the  alternative  for  foreclosure.31 


DEPENDANT'S  PLEADINGS. 

The  defendant  in  this  action  may  file  only  the  plea  of  "not  guilty/' 
which  shall  state  in  substance  that  he  is  not  guilty  of  the  injury  com- 
plained of  in  the  petition  filed  by  the  plaintiff  against  him.32  Under 
this  plea  of  not  guilty  the  defendant  may  give  in  evidence  any  lawful 
defense  to  the  action  except  the  defense  of  limitation,  which  shall  be 
specially  plead.  Nor  can  he  under  such  plea  secure  compensation  for 
improvements  made  in  good  faith.33 

Such  plea  or  any  other  answer  to  the  merits  shall  be  an  admission 
by  the  defendant,  for  the  purpose  of  that  action,  that  he  was  in 
possession  of  the  premises  sued  for,  or  that  he  claimed  title  thereto  at 

28  Shannon  v.  Taylor,  16  Texas,  413;  Day  v.  State,  68  Texas,  526,  4  S.  W.,  865. 

29  Bradley  v.  Deroehe,  70  Texas,  465,  7  S.  W.,  779. 

80  Bridges  v.  Cundiff ,  45  Texas,  443. 

81  Mann  v.  Falcon,  25  Texas,  276;  Mabry  v.  Birge,  44  Texas,  283;  Nye  v.  Grib- 
ble,  70  Texas,  461,  8  S.  W.,  608. 

32  Rev.  Stats.,  art.  5256. 
83  Rev.  Stats.,  art.  5257. 


DEFENDANT'S  PLEADINGS.  421 

the  time  of  the  commencement  cf  the  suit,  unless  he  states  distinctly 
in  his  answer  the  extent  of  his  possession  or  claim,  in  which  case  it 
shall  be  an  admission  of  such  extent  only.34 

The  changes  in  the  general  rules  of  defensive  pleadings  made  by  these 
articles  are  very  great.  They  do  away  with  all  distinctions  between  gen- 
eral denials  and  pleas  in  confession  and  avoidance  and  of  estoppel,  and 
permit  the  defendant  to  prove  and  avail  himself  of  any  defensive  matter 
of  whatever  character,  except  limitation  and  improvements  in  good 
faith  under  the  general  denial. 

To  overcome  this  plea  the  plaintiff  must  make  out  a  case  of  right  in 
himself  at  the  time  of  the  institution  of  the  suit.  He  can  not  maintain 
his  suit  by  proof  of  a  subsequently  acquired  title.35  A  seeming  though 
not  real  exception  to  this  last  statement  exists  in  cases  in  which  at  the 
institution  of  the  suit  the  plaintiff  had  an  equitable  title  which  he  perfects 
during  the  litigation.  In  such  case  he  can  recover  on  the  perfected 
title.30  In  other  instances  if  the  plaintiff  wishes  to  have  the  benefit 
of  a  title  acquired  after  the  suit  was  begun,  he  must  amend  and  set 
up  the  new  title,  thereby  practically  beginning  a  new  suit.37 

The  recovery  must  always  be  based  on  the  strength  of  the  plaintiff's 
title  and  not  on  the  weakness  of  the  defendant's  claim.38  This  title 
may  be  either  legal  or  equitable.39 

The  plaintiff's  title  may  be  made  out  by  regular  claim  of  transfer  from 
the  sovereignty  of  the  soil,  by  deraigning  from  a  common  source  and 
showing  the  superiority  of  the  title  asserted,40  by  actual  prior  posses- 
sion,41 or  by  title  made  out  by  compliance  with  the  requirements  of 

M  Rev.  Stats.  1895,  art.  5258. 

"Teal  v.  Terrell,  48  Texas,  491;  Collins  v.  Ballow,  72  Texas,  330,  10  S.  W., 
£48;  Ballord  v.  Carmicheal,  83  Texas,  355,  18  S.  W.,  734;  Bradford  v.  Hamilton, 
7  Texas,  58;  Givens  v.  Davenport,  8  Texas,  458. 

88Ballard   v.   Perry,   28   Texas,   348. 

"Rucker  v.  Pailey,  66  Texas,  284,  1  S.  W.,  316;  Paston  v.  Blanks,  77  Texas, 
330,  14  S.  W.,  67. 

^Devine  v.  Keller.  73  Texas,  364,  11  S.  W.,  379;  Hughes  v.  Lane,  6  Texas,  289; 
Byers  v.  Wallace,  87  Texas,  503,  29  S.  W.,  760 ;  Barnes  v.  McArthur,  4  Texas  Civ. 
App.,  71,  27  S.  W.,  770. 

89  Walker  v.  Howard,  34  Texas,  478;  Miller  v.  Alexander,  8  Texas,  43;  Viser  v. 
Rice,  33  Texas,  139;  Titus  v.  Johnson,  50  Texas,  224;  Wright  v.  Dunn,  73  Texas, 
293,  11  S.  W.,  330. 

40  Rev.  Stats.  1895,  art.  5266 ;  Ogden  v.  Bosse,  86  Texas,  337 ;  Glover  v.  Thomas, 
75  Texas,  506,  12  S.  W.,  684;  Keys  v.  Mason,  44  Texas,  140;  Cooke  v.  Avery,  145 
U.  S.,  376; Burns  v.  Goff,  79  Texas,  236,  14  S.  W.,  1009. 

tt  Lea  v.  Hernandez,  10  Texas,  137;  Wilson  v.  Palmer,  18  Texas,  592;  Alexander 
v.  Gilliam,  39  Texas,  227;  Parker  v.  Railway  Co.,  71  Texas,  132,  8  S.  W.,  541; 
Railroad  Co.  v.  Ragsdale,  67  Texas,  24,  2  S.  W.,  515. 


422  TRESPASS  TO  TRY  TITLE. 

either  the  three,  five,  or  ten  years  statutes  of  limitation,42  or  by  proof 
of  the  tenancy  of  the  defendant  under  the  plaintiff  and  refusal  to 
surrender  it  at  the  end  of  the  term;43  or  against  a  naked  trespasser  by 
proof  of  prior  peaceable  possession. 


Admission  by  the  Defendant  Involved  in  Pleading  Not  Guilty. 

To  understand  the  effect  of  this  plea  as  an  admission  on  part  of 
defendant',  the  history  of  our  legislation  on  the  subject  must  be  con- 
sidered. 

The  Act  of  1840  which  abolished  the  common  law  action  of  eject- 
ment did  not  introduce  the  plea  of  not  guilty  by  the  defendant,  but 
on  the  contrary  declared  that  if  "the  defendant  set  up  title  to  the 
land  or  to  any  part  thereof,  either  by  possession  or  otherwise,  he 
should  be  required  to  plead  the  same,  and  in  the  plea  should  set  out 
the  land,  claimed  by  him  by  metes  and  bounds  with  the  same  precision 
as  the  plaintiff  was  required  to  do." 

The  act  further  provided  that  the  plaintiff  should  not  be  required 
to  prove  an  actual  trespass  on  the  part  of  the  defendant  to  support  his 
case.44 

The  first  change  of  this  law  was  by  Act  of  February  2,  1844,  which 
was  primarily  designed  to  better  regulate  the  matter  of  improvements 
in  good  faith.  In  it  the  defendant  was  given  the  privilege  of  pleading 
simply  "not  guilty,"  and  under  that  to  try  all  issues  both  as  to  title  and 
improvements.  This  was  the  first  statutory  recognition  of  this  plea. 
These  statutes  were  in  force  in  I860,  when  Stroud  v.  Springfield45  was 
decided.  In  that  case  it  was  contended  that  the  plea  of  "not  guilty" 
relieved  the  plaintiff  from  the  burden  of  proving  that  the  defendant  was 
on  the  land,  and  put  upon  the  defendant  the  burden  of  proving  that 
he  was  not.  In  discussing  the  question  the  court  says :  "It  is  a  proposi- 
tion that  can  not  be  disputed,  that  a  naked  possessor  of  land  is  entitled 
to  hold  it  until  a  perfect  title  is  proved  against  him.  The  claimant  or 
plaintiff  must  prove  the  title  under  which  he  claims,  and  must  also  prove 
that  the  land  described  in  his  petition  is  the  same  possessed  by  the 
defendant,  unless  he  is  relieved  by  the  pleading  or  admission  of  the  de- 


42  Rev.  Stats.   1895,  art.  3347;   Pierson  v.  Burditt,  26  Texas,  i57;   Spofford  v. 
Bennett.  55  Texas,  293;  Branch  v.  Baker,  70  Texas,  190,  7  S.  W.,  808;  Mims  v. 
Rafel.  73  Texas,  300,  11  S.  W.,  277;  McGregor  v.  Thompson,  7  Texas  Civ.  App., 
32,  20  S.  W.,  G49. 

43  Tyler  v.  Davis,  61  Texas,  674;  McKie  v.  Anderson,  78  Texas,  207,  14  S.  W., 
576;   Lamb  v.  Temperance  Hall,  2  Texas  Civ.  App.,  289,  21  S.  W.,  713;  Hall  v. 
Haywood,  77  Texas,  4,  2G  S.  W.,  649. 

44  Act  of  1840,  pp.  136,  137;  2  Gammel  Laws,  pp.  310,  311. 
"  Stroud  v.  Springfield,  28  Texas,  649. 


DEFENDANT'S  PLEADINGS.  423 

fendant  from  so  doing.  Such  is  the  common  law  rule  in  actions  of 
ejectment.  Adams,  Eject.,  par.  277 ;  Greaves  v.  Buby,  2  B.  &  A.,  948 ; 
Pope  v.  Pendergrast,  1  Marsh.,  133. 

"In  this  case  the  defendant  plead  'not  guilty,'  and  the  fifth  section 
of  the  act  of  February  2,  1844  (0.  &  W.  Dig.,  art.  2051),  provides 
that  they  shall  not  be  required  to  put  in  any  other  plea.  By  this  plea 
they  admit  nothing,  but  demand  strict  proof  of  everything  necessary 
to  sustain  the  plaintiff's  action.  If  this  plea  be  construed  to  admit  the 
identity  of  the  land  in  their  possession  with  that  claimed  and  de- 
scribed in  plaintiff's  petition,  and  only  to  put  in  issue  the  title  (the  idea 
on  which  this  instruction  is  based),  it  would,  in  effect,  be  to  require  the 
defendants,  in  order  to  avail  themselves  of  the  full  measure  of  the 
defense  relied  on,  to  plead  it  specifically,  in  express  contravention  of  the 
statute,  which  provides  that  they  shall  not  be  required  to  put  in  any 
other  plea  than  the  one  of  not  guilty. 

"The  sixth  section  of  the  Act  of  1840'  (0.  &  W.  Dig.,  art.  2042), 
which  provides  that  it  shall  not  be  necessary  to  prove  an  actual  trespass 
on  the  part  of  the  defendant  in  order  to  maintain  actions  of  this 
character,  is  cited  by  appellant's  counsel  as  establishing  the  propriety  of 
this  instruction,  and  the  error  of  the  court  in  refusing  it.  We  are 
of  the  opinion  that  it  does  not  have  this  effect. 

"By  the  Act  of  1840,  the  common  law  action  of  ejectment,  with 
its  fictions,  was  abolished,  and  the  present  form  of  action  of  trespass 
to  try  title  was  instituted.  It  was  designed  as  a  simple  and  direct  mode 
of  litigating  and  quieting  titles  to  lands  which  in  almost  every  section  of 
the  country  were  conflicting  and  unsettled.  Nine-tenths  of  the  appro- 
priated lands  of  the  country  were  unoccupied,  and  in  a  majority  of 
instances  the  claimants  resided  at  a  distance  from  them,  and  in  many 
instances  had  never  seen  them.  No  actual  trespass  could  be  proved, 
because  in  many  instances  no  actual  entry  had  been  made.  It  became 
necessary,  in  order  to  adapt  this  remedy  to  the  necessities  of  the  country, 
to  enable  parties  who  desired  its  benefits  to  avail  themselves  of  it 
without  the  necessity  of  proving  actual  trespass,  and  for  this  purpose 
the  clause  of  the  statute  under  consideration  was  enacted. 

"Its  intention  was  simply  to  give  an  unobstructed  remedy,  by  dis- 
pensing with  a  mere  formality,  not  involving  any  right  of  the  de- 
fendant. It  was  not  the  intention,  nor  is  it  the  effect,  of  this  clause 
of  the  statute,  to  shift  the  burden  of  proof,  nor  in  any  way  to  change 
or  interfere  with  the  general  principles  of  law  governing  the  rights  of 
parties. 

"We  are  of  the  opinion  that  the  plea  of  'not  guilty,'  in  actions  of  tres- 
pass to  try  title,  goes  directly  to  the  points  in  dispute  under  the  evidence, 
and  throws  upon  the  plaintiff  the  burden  of  proving  everything  in  rela- 
tion to  these  points  that  is  necessary  to  maintain  his  suit  and  entitle  him 
to  recover. 


424  TRESPASS  TO  TRY  TITLE. 

"The  issues  under  this  plea  are  in  effect  made  by  the  evidence, 
and  if  any  fact  is  found  controverted  there  which  is  necessary  to  en- 
title the  plaintiff  to  recover,  the  burden  is  on  him  to  prove  it.  In 
this  case,  the  evidence  shows  that  the  plaintiff  claims  land  which  is  in 
the  possession  of  the  defendants.  They  deny  that  this  is  the  same 
land  described  in  the  plaintiff's  petition.  The  burden  lies  on  the 
plaintiff  to  identify  the  land  by  proof.  Eivers  v.  Foote,  11  Texas,  662; 
Dally  v.  Booth,  16  Texas,  565;  Ayers  v.  Dnprey,  Galveston  term,  24th 
March,  1864,  27  Texas,  593."46 

The  next  amendment  of  this  statute  was  in  the  revision  of  1879,  which 
put  the  law  in  its  present  form.  The  changes  made  by  it  have  been 
pointed  out  above.  Among  them  was  the  doing  away  with  the  ne- 
cessity of  proof  by  the  plaintiff  of  either  actual  trespass  or  adverse 
claim  to  the  land  by  the  defendant.  Still  the  plaintiff  is  not  relieved 
of  fully  making  out  his  right  to  the  very  land  sued  for;  to  state  it 
differently,  the  plaintiff  must  show  his  right  to  the  very  premises  sued 
for  and  described  in  his  petition.  This,  of  course,  involves  the  proof  of 
the  title  in  the  plaintiff  to  the  land  described  in  his  petition;  not 
simply  that  the  plaintiff  owns  land  somewhere,  but  the  very  land  which 
he  has  said  in  his  pleadings  that  he  owns.  Having  done  this,  he  need 
not  go  further  and  prove  that  the  defendant  is  in  possession  of  this 
land  or  claims  it  adversely  to  him;  this  point  in  the  case,  so  far  as 
recovery  of  the  land  is  concerned,  the  defendant  has  admitted  by  his 
plea  of  not  guilty,  which  under  the  statute  says,  I,  the  defendant, 
do  assert  title  to  or  am  in  possession  of  the  land  described  in"  the 
plaintiff's  petition.  But  this  statutory  construction  of  the  plea  does 
not  say  which  of  these  wrongs  against  the  plaintiff  the  defendant  has 
committed.  It  may  be  either  an  actual  entry  depriving  the  plaintiff  of 
possession  and  an  appropriation  by  the  defendant  of  the  rents  and 
profits  of  the  property,  or  it  may  be  a  mere  adverse  claim  of  title 
which  has  in  no  way  affected  the  plaintiff's  actual  enjoyment  of  it. 
Therefore  if  the  plaintiff,  in  addition  to  the  recovery  of  the  land  de- 
sires to  obtain  judgment  for  its  use  and  occupation  by  the  defendant, 
he  can  not  rest  upon  this  statutory  admission,  but  must  prove  actual 
possession  by  the  defendant,  and  the  reasonable  value  of  the  rents 
and  profits  and  the  extent  of  the  injuries  to  the  premises  which  the  de- 
fendant has  committed.47 


"  See  also  Titus  v.  Johnson,  50  Texas,  224. 

"Ecliols  v.  McKic,  60  Texas,  41;  Cook  v.  Dennis,  61  Texas,  246;  McNamara  v. 
Meunsch,  66  Texas,  68,  17  S.  W.,  397;  Railway  Co.  v.  Prather,  75  Texas,  53,  12 
S.  W.,  9(59;  Blume  v.  Rice,  12  Texas  Civ.  App.,  1,  32  S.  W.,  1056;  O'Connor  v. 
Luna,  75  Texas,  592,  12  S.  W.,  1125. 


DEFENDANT'S  PLEADINGS.  425 

Defense  Under  the  Plea  of  Not  Guilty. 

Under  the  plea  of  "not  guilty"  the  defendant  may  avail  himself 
of  any  defense,  legal  or  equitable,  arising  from  the  weakness  of  the 
plaintiff's  case  or  from  independent  facts  proven  by  the  defendant, 
except  the  statutes  of  limitations,  and  improvements  in  good  faith.48 

An  outstanding  legal  title  in  another  with  which  the  defendant  is 
not  connected  is  available  under  this  plea,49  but  not  so  with  an  out- 
standing equity.50  Even  stale  demand  when  it  is  applicable  is  not  re- 
quired to  be  plead.51  The  fact  that  the  plaintiff  sues  in  the  wrong 
capacity,  also,  is  covered  by  plea  of  not  guilty.52  That  the  plaintiff 
procured  his  title  by  fraud,  when  the  defendant  is  in  condition  to 
avail  of  the  fact,  can  be  shown  under  this  plea.53  That  a  deed  from 
defendant  to  plaintiff  absolute  on  its  face  was  in  fact  a  mortgage  may 
also  be  shown,54  or  that  the  defendant  owns  the  land.55  In  short,  any 
defense  which  could  under  the  ordinary  rules  of  pleading  be  set  up 
by  general  or  special  denial,  or  in  confession  and  avoidance,  or  in 
estoppel  may  be  urged  upon  this  plea,  except  limitations  or  improve- 
ments in  good  faith. 

The  plea  of  not  guilty  can  not,  however,  be  used  for  the  purposes 
of  a  cross-action  and  made  the  basis  for  affirmative  relief.  If  the 
defendant  wishes  any  judgment  against  the  plaintiff,  quieting  his 
(defendant's)  title,  or  giving  him  possession,  or  any  affirmative  re- 
lief whatever,  he  must  make  the  proper  allegations  and  prayer  in  his 
answer  for  such  purpose.56 

If  the  defendant  in  addition  to  his  plea  of  not  guilty  specially  sets 
out  the  title  or  claim  which  he  has  in  the  premises,  and  seeks  to 
justify  his  action  thereunder,  he  is  thereby  confined  to  the  defenses 
which  arise  out  of  the  weakness  of  the  plaintiff's  case  and  to  the  mat- 


48  Johnson  v.  Flint,  75  Texas,  379,  12  S.  W.,  1120;  Neill  v.  Keese,  5  Texas,  23; 
King  v.  Elson,  30  Texas,  246;  Chamberlain  v.  Pybas,  81  Texas,  511,  17  S.  W., 
50;  Kauffman  v.  Brown,  83  Texas,  41,  18  S.  W.,  425;  Herrington  v.  Williams,  31 
Texas,  450;  Ragsdale  v.  Gohlke,  36  Texas,  286. 

"King  v.  Elson,  30  Texas,  246;  Adams  v.  House,  61  Texas,  639;  Tabor  v.'Lo- 
sano,  6  Texas  Civ.  App.,  698,  25  S.  W.,  973. 

60  Ballard  v.  Carmichial,  83  Texas,  355,  18  S.  W.,  734. 

"Montgomery  v.  Noyes,  73  Texas,  203,  11  S.  W.,  138;  Mayes  v.  Manning,  73 
Texas,  43,  11  S.  W.,  136. 

B-  Blair  v.  Cisneros,   10  Texas,  35. 

"Taylor  v.  Ferguson,  87  Texas,  1;  Earth  v.  Green,  78  Texas,  678,  15  S.  W.,  112. 

54  Mann  v.  Falcon,  25  Texas,  272. 

"Robb  v.  Robb,  41  S.  W.,  92. 

50  Archibald  v.  Jacobs,  69  Texas,  248,  6  S.  W.,  117;  Schmidt  v.  Talbert,  74 
Texas,  451,  12  S.  W.,  284;  Schaub  v.  Dallas  Brewing  Co.,  80  Texas,  636,  16  S.  W., 
429. 


426  TRESPASS  TO  TRY  TITLE. 

lei's  specially  plead  by  him.  Such  special  plea  by  the  defendant  does 
not  make  out  the  plaintiff's  case  for  him,  and  he  is  still  required  to  es- 
tablish by  proof  a  prima  facie  right  in  himself  in  order  to  recover,  but 
having  done  this,  it  can  be  overthrown  only  by  proof  of  the  very  facts 
specially  plead  by  the  defendant.57 


Plaintiff's   Right  to   Meet  Defenses    Made   Under   Plea   of  Not 
Guilty. 

As  the  plaintiff  is  not  advised  by  the  defendant's  plea  of  "not 
guilty"  what  particular  defenses  the  latter  expects  to  interpose,  he  is 
not  required  to  meet  such  an  answer  with  any  replication  or  supple- 
mental petition,  but  is  permitted  to  introduce  evidence  in  rebuttal  of 
defendant's  evidence  or  in  confession  and  avoidance,  or  in  estoppel  of 
the  defenses  interposed  by  the  evidence.58 


Defenses  of  Limitation. 

The  one  defense  on  the  merits  of  the  title  which  the  defendant  can 
not  avail  himself  of  under  the  plea  of  not  guilty  is  limitation.  There 
are  three  periods  of  possession  which,  concurring  with  certain  facts, 
may  respectively  destroy  the  plaintiff's  right  and  prevent  any  recovery 
by  him  against  the  party  so  in  possession.  The  statutes  giving  these 
rights  are  known  respectively  as  the  statutes  of  limitation  of  three, 
five,  or  ten  years.  These  may  be  interposed  in  connection  with  the  plea 
of  not  guilty,  and  do  not  have  the  effect  of  limiting  its  effect  in  any 
way.  The  rule  of  pleading  is  that  each  plea  of  limitation  must  set 
up  every  fact  which  under  the  particular  statute  thereby  invoked  is 
essential  to  the  defense.  In  each  of  these  statutes  there  must  be  peace- 
able and  adverse  possession  continuing  for  the  length  of  time  pre- 
scribed by  the  statutes.  These  terms  are  each  defined  by  the 
statutes.50  It  is  apparent  that  the  allegation  that  the  possession  is 
peaceable  and  adverse  is  the  averment  of  a  mixed  matter  of  law  and 
fact,  but  the  precedents  sustain  the  use  of  these  expressions  as  tender- 
ing issuable  facts,  and  so  the  technical  objection  to  them  on  that 
ground,  it  seems,  can  not  now  be  urged.  In  addition  to  these  features 
that  are  common,  each  statute  has  its  specially  characteristic  elements. 

57  Custard  v.  Musgrove,  47  Texas,  217;  Sayers  v.  Texas  Land  and  Mortgage  Co., 
78  Texas,  244,  14  S.  W.,  578. 

58  Paul  v.  Perez,  7  Texas,  338;  Rivers  v.  Foote,  11  Texas,  671;  Hollingsworth  v. 
Holshousen,  17  Texas,  41;  Rodriguez  v.  Lee,  26  Texas,  32;  Shields  v.  Hunt,  45 
Texas,  424;  McSween  v.  Yett,  60  Texas,  183. 

58  Rev.  Stats.  1895,  arts.  3348,  3349;  pp. ,  supra. 


DEFENDANT'S  PLEADINGS.  427 

Under  the  three  years  statute,  the  possession  must  be  held  for 
three  years  under  title  or  color  of  title  from  or  under  sovereignty  of 
the  soil.  While  the  statute  gives  these,  title  or  color  of  title,  in  the 
alternative,  that  is  not  the  proper  method  of  pleading  them.  The 
averment  should  be  direct  and  certain  and  not  in  the  alternative. 
Both  claims  may  be  made, — that  is,  the  allegation  may  be  that  the 
possession  was  under  title  and  color  of  title  and  proof  of  either  would 
be  sufficient  on  this  point,  but  to  say  the  possession  was  under  title  or 
color  of  title  would  not  be  a  direct  averment  of  either. 

At  an  early  time  it  was  decided  that  the  plea  must  not  stop  with 
the  averment  of  title  or  color  of  title,  as  the  case  might  be,  but  must 
go  further  and  show  that  the  clakn  is  under  a  transfer  from  or  under 
the  sovereignty  of  the  soil.60  The  point  does  not  seem  to  have  been 
raised  since  that  time.  The  decision  seems  to  be  clearly  correct  upon 
principle  and  should  be  followed.  This  is  not,  however,  the  universal 
practice. 

A  great  many  interesting  questions  have  arisen  under  this  statute, 
but  they  are  almost  altogether  questions  of  substantive  law  and  do 
not  affect  the  manner  of  pleading  or  procedure. 

Under  the  five  years  statute  the  essentials,  in  addition  to  the  adverse 
and  peaceable  possession,  are,  that  it  must  have  been  held  for  five  years 
under  a  deed  or  deeds  duly  recorded,  and  all  taxes  lawfully  assessed 
against  the  property  must  have  been  paid,  and  there  must  have  been  use 
and  enjoyment  of  the  property.  There  is  a  proviso  to  this  statute  as  to 
forged  deeds.  It  is  held  by  the  Court  of  Civil  Appeals  that  this  does  not 
affect  the  pleadings  by  the  defendant, — that  is,  the  defendant  is  not  re- 
quired to  plead  that  his  deeds  are  all  genuine;  but  the  plaintiff,  if  he 
desires  to  raise  this  issue,  must  allege  the  forgery.01  This  is  based  on  the 
idea  that  the  five  years  possession  under  deed  duly  recorded,  the  other 
facts  concurring,  make  out  a  prima  facie  case  under  the  statute,  and 
if  there  be  a  forgery  among  defendant's  deeds,  this  is  an  independent 
fact  which  the  plaintiff  must  allege.  The  propriety  of  the  ruling 
seems  to  be  quite  doubtful.  The  defendant  is  not  required,  in  his  plea 
of  five  years  limitation,  to  set  out  the  chain  of  title  under  which  he 
claims.  Why  the  plaintiff  should  be  required  to  hunt  up  the  records, 
and  ascertain  and  determine  in  advance  what  deeds  the  defendant  will 
offer  in  evidence  to  support  his  plea,  or,  if  the  defendant  shall  file 
his  deeds  and  give  the  requisite  notice  to  admit  them  in  evidence, 
unless  they  are  attacked  as  forgeries,  and  the  plaintiff  does  made 
such  attack  upon  them  by  filing  affidavits  as  required  by  statute,  why 
he  should  be  obliged  also  to  specially  plead  the  fact  of  forgery  is 

*°  Mason  v.  McLaughlin,  16  Texas,  24. 
81  Harris  v.  Linberg,  39  S.  W.,  (551. 


428  TRESPASS  TO  TRY  TITLE. 

not  readily  apparent.     1  have  found  only  the  one  case  on  the  point, 
and  do  not  regard  it  as  settled. 

Under  the  ten  years  statute,  all  that  is  necessary  to  entitle  to  one 
hundred  and  sixty  acres,  or  more  if  held  under  written  instrument, 
or  in  actual  possession,  is  the  peaceable  adverse  possession  of  the  land 
for  ten  years.  Prior  to  1879  the  right  conferred  by  this  statute  ex- 
tended to  six  hundred  and  forty  acres,  but  by  act  of  that  date  it  was 
limited  to  one  hundred  and  sixty  acres,  unless  the  excess  were  actually 
inclosed  or  were  embraced  in  some  memorandum  other  than  a  deed 
under  which  the  possession  is  held.  In  the  latter  case,  the  right  at- 
taches to  the  whole  tract  of  land  so  inclosed  or  covered  by  the  memo- 
randum. JSTo  payment  of  taxes,  and  no  memorandum,  and  no  deed 
are  essential  in  this  instance.  A  plea  setting  up  rights  under  this 
statute  should,  in  some  way,  identify  the  land  claimed.  If  it  be 
identical  with  that  claimed  by  the  plaintiff  in  his  pleadings,  the  de- 
scription by  him  may  be  adopted;  if  it  be  different,  or  if  it  embraces 
only  a  portion  of  that  sued  for,  the  defendant  should  describe  the 
exact  tract  claimed  by  him  so  there  may  be  some  basis  in  the  plead- 
ings for  an  intelligent  judgment  in  his  behalf.  This  has  not  been 
expressly  decided  to  be  absolutely  essential  as  to  limitation.  The 
principle  has  been  applied  in  claim  of  improvements  in  good  faith.02 
It  is  certainly  the  best  practice,  and  tends  to  the  orderly,  and  in- 
telligent conduct  of  the  case,  though  it  can  not  be  said  that  it  is 
mandatory  under  our  system.  The  rule  has  special  force  in  cases  in 
which  the  defendant  desires  some  affirmative  relief  on  his  part  as  to  a 
portion  of  the  land,  and  in  such  cases  would  seem  to  be  mandatory, 
as  he  could  have  no  judgment  in  his  favor  for  a  portion  of  the  land 
not  claimed  and  described  in  his  answer. 


IMPROVEMENTS  IN  GOOD  FAITH. 

There  was  a  great  deal  of  uncertainty  regarding  land  titles  in  the 
early  settlement  of  our  State.  Sovereignty  had  been  exercised  over 
the  territory  by  different  political  powers,  and  naturally  different 
systems  of  granting  lands  and  of  issuing  titles  had  obtained.  A 
great  many  genuine  certificates  were  seriously  doubted,  and  a  great 
many  false  and  fraudulent  ones  were  issued  and  passed  upon  unsus- 
pecting individuals  without  question.  Actual  surveying  of  lands  and 
the  establishment  of  permanent  boundaries  was  expensive  and  in 
many  instances  dangerous,  so  that  much  of  the  reported  surveying  was 
done  in  offices  with  scales  and  dividers  instead  of  on  the  field  with 
chain  and  compass.  The  result  was  extreme  and  continuous  confusion. 

"Selman   v.  ,Lee,   55   Texas,    319. 


IMPROVEMENTS    IN   GOOD    FAITH.  429 

It  was  very  desirable  that  the  State  should  be  settled.  A  citizen- 
ship with  fixed  homes  and  a  land  yielding  fruits  to  support 
such  citizenship  were  essential  to  the  growth  of  the  Eepublic 
and  the  State.  Eecognizing  this,  the  legislative  department  of  the 
government,  at  an  early  day,  undertook  to  encourage  the  actual  set- 
tlement and  improvement  of  the  country  in  every  ligitimate  way. 
It  gave  certificates  for  land  to  persons  who  would  come  and  settle 
in.  the  State;  gave  homes  upon  the  public  domain  to  others  settling 
there;  passed  laws  protecting  from  forced  sales  a  designated  quantity 
of  land  as  a  homestead;  and  undertook,  in  pursuance  of  the  same 
policy,  to  protect  the  man  who  settled  and  improved  land  belonging 
to  another  but  which  he  honestly  believed  to  belong  to  himself,  by 
compelling  the  owner,  when  he  should  appear  and  demand  possession, 
to  pay  to  the  improver  the  then  reasonable  value  of  the  permanent  im- 
provements in  excess  of  the  rental  value  of  the  land  which  had  been 
received  by  the  possessor.  This  was  the  theory  and  purpose  of  the 
law;  and  in  keeping. with  it  we  find  that  the  defendant  in  possession 
may  secure  compensation  for  his  improvements,  provided  he  or  those 
whose  improvements  he  has  bought,  if  he  did  not  make  them  him- 
self, acted  in  good  faith  in  making  them,  and  had  been  in  possession 
for  at  least  one  year  before  suit  was  brought  and  the  improvements 
were  permanent  fixtures,  increasing  the  value  of  the  land. 

There  have  been  several  statutes  on  the  subject  agreeing  in  their 
main  purposes,  but  differing  somewhat  in  their  details.  The  first  of 
these  statutes  is  the  Act  of  February  5,  1840,  which  has  previously  been 
referred  to.  Its  language  on  this  subject  is  this: 

"Sec.  8.  Be  it  further  enacted,  that  in  any  action  of  trespass  to 
try  titles,  it  shall  be  lawful  for  the  defendant,  at  any  time  before  the 
trial  of  the  suit,  to  suggest  to  the  court  that  he  and  those  persons  whose 
estates  he  has  in  the  lands  and  tenements  sued  for,  have  had  adverse  pos- 
session of  the  same  in  good  faith,  for  at  least  one  year  next  before  the 
commencement  of  such  suit;  and  that  he  and  those  persons  whose  estates 
he  has,  have  made  permanent  and  valuable  improvements  on  the  lands 
sued  for,  during  the  time  he  or  they  have  had  such  possession  of  the  same ; 
and  the  jury  trying  the  suit,  if  they  shall  find  for  the  plaintiff,  shall 
at  the  same  time  inquire  if  the  suggestion  so  made  be  true  or  false — if 
false,  they  shall  return  a  verdict  as  in  ordinary  cases,  for  the  damage 
sustained — but  if  true,  they  shall  assess  the  value  of  the  improve- 
ments at  the  time  of  the  trial  which  have  been  made  by  the  defendant, 
or  by  those  whose  estate  he  has,  and  shall  assess  the  value  of  the  land 
or  tenements  without  considering  the  increased  value  thereof  by  reason 
of  such  improvements  as  shall  have  been  made  by  said  defendant,  or 
by  those  whose  estate  he  has,  and  they  shall  also  assess  the  value  of 
the  use  and  occupation  of  said  lands;  and  if  the  value  of  the  use  and 
occupation,  as  assessed,  shall  exceed  the  value  of  the  improvements  as 


430  TRESPASS  TO  TRY  TITLE. 

assessed,  the  court  shall  render  a  judgment  against  the  defendant  for 
the  excess. 

"Sec.  9.  Be  it  further  enacted,  that  in  any  suit  where  the  value  of 
the  improvement  so  assessed  shall  exceed  the  value  of  the  usa  and 
occupation,  no  writ  of  possession  shall  be  issued  for  the  term  of  one 
year  after  the  rendition  of  the  judgment,  unless  the  plaintiff  or  his 
legal  representatives  shall  pay  to  the  clerk  of  the  court,  for  the  de- 
fendant, the  excess  of  the  value  of  the  improvements  over  the  value  of 
the  use  and  occupation;  and  if  the  said  plaintiff  or  his  legal  repre- 
sentatives shall  neglect,  for  the  term  of  one  year,  to  pay  the  excess 
in  value  of  said  improvements,  and  the  said  defendant,  or  his  legal 
representatives,  shall  within  six  months  of  the  expiration  of  said  year 
pay  to  the  clerk  of  the  court,  for  said  plaintiff,  the  value  of  the 
said  lands  or  tenements  as  assessed  by  the  jury,  then  the  plaintiff 
shall  be  forever  barred  of  his  writ  of  possession,  and  from  ever  having 
or  maintaining  any  action  whatever  against  the  defendant,  his  heirs 
or  assigns,  for  the  lands  or  tenements  recovered  by  said  suit;  and  if 
the  defendant  or  his  legal  representatives  shall  not,  within  the  said  six 
months,  avail  him  or  themselves  of  the  benefit  of  this  act,  the  plaintiff, 
or  his  legal  representatives,  may  sue  out  a  writ  of  possession  as  in  ordi- 
nary cases." 

This  law  seems  to  have  been  generally  recognized  as  valid,  but  was 
finally  attacked  as  unconstitutional  on  the  ground  that  it  was  a  divesti- 
ture of  the  owner's  title  without  due  process  of  law,  and  consequently 
a  violation  of  the  contract  contained  in  the  grant  of  the  land;  and  the 
case  of  Green  v.  Biddle63  was  cited  in  support  of  the  contention.  The 
Supreme  Court,  however  sustained  the  statute,  basing  its  opinion  on 
the  provisions  of  the  Spanish  law  on  this  subject,  which  had  been  in 
force  in  Texas  till  the  act  now  under  consideration  was  passed,  and 
was  part  of  the  contract  evidenced  by  the  grant;  and  on  principles  ad- 
ministered in  courts  of  equity.64  This  decision  was  rendered  in  1855. 
In  the  meantime,  the  Legislature  in  1844  passed  amendments  to  the 
act  quoted  above.  Keferring  to  and  construing  this  later  act,  the  court, 
in  the  case  of  Hearn  v.  Camp,65  says:  "The  Act  of  February,  1844, 
professes  in  its  title  to  be  'for  the  benefit  of  settlers  in  good  faith/ 
and  its  provisions,  are  severely  and  energetically  in  conformity  with 
the  object  and  policy  specified  in  the  title.  No  doubt  sound  policy 
requires  that  a  settler  who  honestly  believes  the  land  to  be  his  own 
should  be  protected  in  his  labor  and  industry  and  receive  pay  for  last- 
ing and  beneficial  improvements.  This  is  demanded  alike  by  the  dic- 

113  Green  v.  Biddle,  8  Wheat.,  1. 
"Scott  v.  Mather,  14  Texas,  235. 
"Hearn  v.  Camp.,  18  Texas,  546,  1851. 


IMPROVEMENTS   IN    GOOD   FAITH.  431 

tates  of  policy  and  the  principles  of  equity  as  recognized  to  a  greater 
or  less  degree  in  the  codes  of  civilized  nations.  See  Adams  on  Eject- 
ment, 386,  391;  1  Maddox  Ch.,  90;  4  Cow.,  168;  2  Wash.  (C.  C).  165. 

"And  where,  for  the  want  of  a  system,  most  of  the  lands  have  been 
granted  twice  or  more  times,  and  the  conflict  has  become  so  great  that 
without  the  judgment  of  a  court  it  can  not  be  ascertained  who  has 
the  better  title,  the  settler  who,  through  an  honest  though  mistaken 
belief  that  he  has  a  good  title,  has  opened  fields,  built  houses,  and 
made  improvements,  is  entitled  to  the  most  liberal  protection,  and 
possibly,  under  such  circumstances,  the  rights  of  the  real  owner  may 
not  be  entitled  to  much  weight  until  fixed  and  ascertained  by  the 
judgment  of  the  court. 

"Under  such  circumstances,  the  provisions  of  the  occupying  claimant 
laws  of  Kentucky  were  held  by  the  courts  of  that  State  to  be  con- 
stitutional, though  against  the  decisions  of  the  Supreme  Court  of  the 
United  States  in  Green  v.  Diddle,  8  Wheat.,  1.  But  such  extreme 
legislation  can  only  be  justified  by  extraordinary  circumstances.  This 
tendency  of  legislation  in  favor  of  the  settler,  and  as  against  the  real 
owner,  must  have  some  limits.  The  lands  of  an  individual  can  not 
be  taken  for  public  use  without  conpensation,  much  less  can  they 
be  wrested  from  one  man  and  given  to  another;  neither  directly,  nor 
indirectly  by  such  clogs,  restrictions  and  burthens  upon  his  right  of 
recovery,  as  to  in  a  great  measure  destroy  the  value  of  the  property 
itself. 

"A  right  to  the  land  has  been  well  said  to  imply  a  right  to  the 
profits  accruing  from  it,  since  without  the  latter  the  former  can  be  of 
no  value.  Thus  a  devise  of  the  profits  of  the  land  will  pass  the  land 
itself.  Shep.  Touchstone,  93;  Co.  Litt.,  4;  8  Wheat.,  76. 

"In  the  case  of  Scott  v.  Mather,  14  Texas,  we  have  decided  that  the 
defendant,  being  a  settler  in  good  faith,  is  entitled  to  full  payment 
for  his  improvements,  though  this  might  exceed  in  amount  what  was 
owing  from  the  defendant  for  the  use  and  occupation;  and  it  is  be- 
lieved that  the  Legislature  did  not  exceed  its  powers  when  it  declared, 
in  the  first  section  of  the  act  af  1844,  that  there  should  be  no  recovery 
for  the  use  and  occupation  prior  to  suit  brought.  Yet  it  is  believed 
that  the  Legislature  transcended  the  limits  of  the  Constitution  when 
they  inhibited  recovery  for  the  rents,  unless  pay  for  the  improve- 
ments was  tendered  before  the  commencement  of  the  suit,  or  there  was 
a  tender  to  submit  the  matter  to  arbitration.  In  the  first  place,  the 
Legislature  has  no  power  to  compel  a  litigant  to  submit  any  matter 
in  dispute  to  arbitration;  and  in  the  second  place,  the  provision  is  con- 
tradictory, repugnant,  and  suicidal  in  itself.  The  very  question  to 
be  determined  by  the  jury  on  the  trial  is,  whether  the  settlement  was  in 
good  faith.  Upon  this  depends  the  settler's  right  to  pay  for  improve- 
ments at  all;  at  least  his  right  under  the  statute.  How,  then,  can 


432  TRESPASS  TO  TRY  TITLE. 

the  plaintiff  be  required,  before  he  commences  suit,  to  arbitrate  the 
matter  of  improvements  or  pay  for  them,  until  it  be  determined  on 
the  trial  that  the  defendant  is  entitled  to  compensation  for  such  im- 
provements? The  provision  is  not  only  rigorous  and  harsh  to  such 
an  extent  as  to  be  beyond  the  just  limits  of  legislation,  but  is  con- 
tradictory in  itself,  and  as  such  should  not  be  enforced.  The  conclusion 
from  a  review  of  these  sections  is  that  the  successful  claimant  can  recover 
from  the  defendant  for  the  use  and  occupation  from  the  commence- 
ment of  the  suit;  and  he  is  not  required  to  tender  pay  for  the  im- 
provements, or  arbitration  in  regard  to  such  pay,  before  he  brings  the 
suit,  in  order  to  entitle  him  to  recover  the  rents  and  profits.  There 
was  error  in  so  much  of  the  charge  as  would  authorize  a  recovery  for 
the  use  from  the  commencement  of  possession  by  the  defendant." 

Shortly  after  the  decision  just  quoted  was  rendered,  the  question  was 
again  passed  upon  by  the  court  in  the  case  of  Saunders  v.  Wilson.60 
This  case  reiterates  the  substance  of  the  two  decisions  given  above 
affirming  the  doctrine  announced  in  both,  viz.,  that  the  Act  of  1840 
was  constitutional  and  that  the  provisions  of  the  Act  of  1844  de- 
nounced in  the  last  opinion  were  void.  This  has  since  been  regarded 
settled  law,  and  all  subsequent  legislation  on  the  subject  has  dealt  with 
it  on  that  basis. 

The  present  statutes  have  been  given.67 

Procedure  Under  This  Statute. 

To  obtain  the  benefits  of  this  statute,  the  defendant  must  allege  the 
points  upon  which  he  relies  as  entitling  him  to  them.  He  can  not 
recover  for  his  improvements  under  a  plea  of  "not  guilty"  simply. 
The  two  pleas  are  not  inconsistent,  but  one  does  not  take  the  place  of 
the  other.68  These  facts  thus  entitling  him  are  adverse  possession 
by  himself,  and  those  under  whom  he  claims,  of  the  premises  in  contro- 
versy, for  at  least  one  year  next  before  the  bringing  on  the  suit; 
good  faith  by  the  parties  so  in  possession ;  that  is,  an  honest  and  rational 
belief,  based  on  reasonably  sufficient  facts,  that  they  owned  the  land; 
the  making  of  improvements  both  valuable  and  permanent  on  the 
premises  during  such  possession;  the  continuing  nature  of  the  im- 
provement, and  that  they  are  on  the  land  at  the  time  of  the  trial.  Each 
of  these  facts  must  be  set  up  specifically  and  in  legal  form.139 

68  Saunders  v.  Wilson,  19  Texas,  194,  1857. 

07  Rev.  Stats.  1895,  arts.  5277-5285;   page  — ,  supra. 

63  Rev.  Stats.  1895,  arts.  5256-5277;  Rogers  v.  Bracken,  15  Texas,  564;  Bonner 
v.  Wiggins,  52  Texas,  125. 

89  Rev.  Stats.  1895,  art.  5277;  Thompson  v.  Comstock,  59  Texas,  318;  Jobe  v. 
Oilre,  80  Texas,  185,  15  S.  W.,  1042. 


SUPPLEMENTAL   PLEADINGS.  433 

Prior  .to  1879  the  general  allegation  of  good  faith  was  sufficient 
on  that  point,  but  this  is  not  so  under  the  present  statute.  The  sim- 
ple averment  that  the  possession  was  in  good  faith  is  no  longer  per- 
mitted. The  plea  must  state  the  grounds  of  the  claim  to  the  property, 
— that  is,  it  must  state  the  nature  of  the  title  or  claim  and  why  it  was 
thought  sufficient,  and  the  matter  so  stated  must  be  legally  sufficient 
for.  the  sunport  of  this  contention,  otherwise  the  plea  is  bad  on  de- 
murrer. Simple  faith  in  one's  claim,  without  some  good  foundation 
is  not  sufficient,  and  hence,  in  pleading  "good  faith,"  it  is  essential 
that  the  allegations  as  to  the  "grounds"  shall  show  facts  upon  which 
the  party  was  legally  entitled  to  rely  and  act  as  a  claim  in  himself.70 

The  statutes  of  1879  also  require  a  more  detailed  statement  of  the 
nature  and  extent  of  the  improvements  than  was  held  necessary  be- 
fore, and  care  must  be  taken  not  to  be  misled  by  the  earlier  cases  on 
this  subject. 

Where  the  defendant  is  sued  for  a  tract  of  land  larger  than  that 
which  he  claims,  and  he  desires  to  have  the  question  of  pay  for  his 
improvements  determined,  he  must  in  his  answer  describe  the  particu- 
lar land  which  he  owns,  otherwise  it  is  impossible  to  introduce  evi- 
dence of  those  facts  which  lie  at  the  very  foundation  of  his  rights, — 
namely,  the  increased  value  of  the  land  by  reason  of  the  improve- 
ment, the  rental  value  of  the  land  without  improvement,  etc.71  It  is 
better  form  to  set  up  the  rental  value  of  the  land  apart  from  the 
improvements  also.  But  I  know  no  decision  which  declares  this  to  be 
necessary. 

The  plea  or  suggestion  must  affirmatively  show  adverse  possession 
for  one  year  before  the  suit  was  filed,72  and  that  the  improvements 
were  made  before  suit,  and  while  defendant  or  his  grantor  was  in 
possession  in  good  faith.73 


SUPPLEMENTAL  PLEADINGS. 

The  parties  can  file  supplemental  pleadings  in  this  action  as  in 
other  cases.  If  the  method  of  setting  out  the  facts  constituting  title 
be  adopted,  such  pleadings  are  very  often  essential.  If  the  defendant's 
answer  be  confined  to  demurrers  and  a  plea  of  "not  guilty,"  there  can 

70  Powell  v.  Davis,  19  Texas,  382 ;  Ragsdale  v.  Qphlke.  36  Texas,  286 ;  Miller  v. 
Brownson,  50  Texas,  584;  House  v.  Stone,  64  Texas,  678;  Thompson  v.  Comstock, 
59  Texas,  319;  Holstein  v.  Adams,  72  Texas,  489,  10  S.  W.,  560. 

71  Sellman  v.  Lee,  55  Texas,  319. 

"  Scott  v.  Maynard,  Dal  lam,  548. 

73  Crumbley  v.  Busse,  11  Texas  Civ.  App.,  319,  32  S.  W.,  438. 
28 — Pleading 


434  TRESPASS  TO  TEY  TITLE. 

be  no  supplemental  pleading,  for  there  is  nothing  in  the  pleading  to 
which  the  plaintiff  can  reply  by  pleading  further.  In  such  cases  as 
the  defendant  can  avail  himself  of  any  defense  which  he  may  be  able 
to  prove,  which  would  have  been  good  if  plead,  except  limitation  and 
the  qualified  defense  of  improvement  in  good  faith;  justice  requires 
that  the  plaintiff  may  without  further  pleading  on  his  part  introduce 
in  evidence  matters  in  rebuttal,  or  confession  and  avoidance,  or  of 
estoppel,  to  meet  the  matters  proved  by  the  defendant.74  The  early 
authorities  on  this  point  have  never  been  questioned. 

If,  however,  the  defendant  does  not  plead  "not  guilty"  or  if  in 
addition  thereto  he  pleads  special  matter  of  confession  and  avoidance 
or  of  estoppel,  then  the  plaintiff  must  reply  to  this  by  proper  pleading, 
or  else  he  will  be  confined  to  the  matters  admissible  under  his  original 
petition,  and  in  rebuttal  of  the  matters  plead  by  the  defendant,  and 
will  not  be  permitted  to  confess  and  avoid  the  new  matters  set  up  by 
the  defendant.75 

This  has  been  frequently  decided  with  regard  to  disabilities,  which 
prevent  the  running  of  the  statutes  of  limitation  against  the  plaintiff, 
as  plead  by  the  defendant.  The  general  rule  being  that  the  statutes 
of  limitation  run  against  all  persons,  if  some  special  fact  exists  as  to 
a  particular  litigant  which  prevents  them  -from  running  as  to  him  or 
her,  he  must  bring  these  special  facts  to  the  knowledge  of  the  court 
and  the  adverse  party  by  appropriate  averments  before  they  can  be 
taken  into  account  in  determining  the  rights  of  the  parties.  The  most 
natural  and  appropriate  method  of  doing  this  is  by  filing  a  supple- 
mental petition  containing  the  allegations.  These  must  show  the 
facts  constituting  the  disability,  and  that  they  have  existed  for  such 
length  of  time  and  under  such  circumstances  as  to  prevent  the  running 
of  the  statute.  It  is  not  sufficient  to  show  that  they  exist  at  the  time 
of  filing  the  supplemental  petition  nor  at  the  date  of  the  institution 
of  the  suit;  but  it  must  appear  that  they  existed  when  the  cause  of 
action  set  up  accrued,  and  have  continued  up  to  the  filing  of  the 
pleading  or  for  such  length  of  time  as  to  prevent  the  bar  of  the 
statute. 

Jurisdiction  and  venue  and  parties  in  these  actions  have  been  fully 
considered  in  the  several  chapters  on  those  heads;  the  other  matters 
in  the  statute  not  discussed  in  this  chapter  seem  to  be  strictly  ques- 
tions of  procedure  not  directly  connected  with  pleadings. 

M  Hunt  v.  Turner,  9  Texas,  385. 

"Paschal  v.  Perez,  7  Texas,  348;  Rivers  v.  Foote,  11  Texas,  671. 


DEFINITION.  435 


CHAPTER  XVII. 

i 

MOTIONS. 

Under  our  system  there  are  but  two  ways  of  applying  to  a  court  or 
judge  for  judicial  action, — by  pleading  and  by  motion.  The  first  has 
been  already  defined  and  embraces  the  formal  presentation  to  the  court 
of  the  matter  constituting  the  plaintiff's  cause  of  action  and  the  de- 
fendant's ground  of  defense.  The  second  embraces  all  applications  not 
made  by  pleadings. 

During  the  progress  of  a  trial  many  matters  aside  from  those  pre- 
sented in  the  pleadings  come  up  for  judicial  action  and  require  to  be 
settled  by  the  court  in  order  that  justice  may  be  done  and  a  proper 
judgment  finally  reached.  In  many  such  instances  the  court  will  act 
as  of  course  without  application  of  either  of  the  parties;  in  others,  the 
court  does  not  take  the  initiative,  but  acts  only  in  response  to  request. 
Such  a  request  to  the  court  is  a  motion. 

Under  the  equity  practice  and  also  under  the  code  system  as  it 
exists  in  many  of  the  States,  there  is  still  a  third  method  of  applying  to 
the  court  for  assistance.  This  application  is  known  as  a  "petition."  It 
may  be  said  in  general  that  the  matters  presented  in  this  way  are  those 
not  so  far  reaching  or  important  in  their  consequences  as  to  be  embraced 
in  the  pleadings  or  to  form  part  of  the  relief  sought  on  final  hearing, 
nor  yet  so  trivial  as  to  be  presented  by  the  informal  means  of  a  motion. 
Our  system  of  practice  does  not  recognize  this  distinction,  and  with 
us  every  application  for  judicial  action  not  embodied  in  the  pleadings 
is  known  as  a  motion.  On  the  other  hand,  under  the  code  system  in 
some  States,  matters  can  be  reached  by  motion  which  with  us  can  be 
raised  only  by  pleadings.  Formal  defects  in  the  pleadings  of  the  adverse 
party  are  in  those  States  called  to  the  attention  of  the  court  by  motion 
to  strike  out  or  to  reform  the  defective  instrument;  in  our  practice,  these 
objections  can  be  reached  only  by  special  exceptions.  It  is  important  to 
keep  these  distinctions  in  mind,  in  order  not  to  be  mislead  by  the  authori- 
ties based  upon  the  equity  and  code  practices.1 

• 

DEFINITION. 

A  motion  in  our  practice  may  be  defined  as  an  application  to  a  court 
or  judge,  not  presented  by  the  formal  pleadings  of  the  parties,  for 

1  14  Enc.  of  Plead,  and  Prac.,  title  "Motions." 


436  MOTIONS. 

some  action  or  order  desired  at  the  institution  or  during  the  progress 
of  a  case,  which  does  not  contemplate  a  final  adjudication  on  the 
merits  of  the  cause  of  action.  • 

It  asks  a  court  or  judge  to  do  something  which  does  not  finally  settle 
the  matters  in  controversy,  but  which  will  aid  the  party  in  the  prepara- 
tion or  institution  of  his  case,  or  secure  the  rights  and  claims  of  the 
party  pending  the  litigation,  or  which  will  assist  in  the  accomplishment 
of  the  purposes  for  which  the  suit  was  brought,  or  in  some  way  compel 
the  parties  to  carry  on  the  litigation  in  conformity  to  law.  It  is 
apparent  that  these  requests  or  applications  may  be  very  different  in 
their  purposes  and  results.  The  matter  may  be  of  the  most  trivial 
character,  as,  for  instance,  the  correction  of  some  formal  irregularity 
in  a  porcess  or  return;  it  may  be  a  matter  of  right  which  will  be 
granted  as  of  course, — as  leave  to  file  an  amendment  to  a  party's  plead- 
ing, or  to  place  a  case  on  the  jury  docket  when  made  in  proper  time  and 
manner;  or  it  may  be  of  such  nature  as  to  result  in  the  termination  of 
the  cause, — as  a  motion  to  dismiss  foj*  want  of  prosecution;  or  its 
determination  may  necessarily  involve  questions  which  will  be  of  great, 
if  not  controlling,  influence  on  the  final  hearing, — as  a  motion  to  dis- 
solve an  injunction  for  want  of  equity  in  the  bill.  But  whatever  its 
nature,  if  it  relates  to  the  manner  of  conducting  the  litigation,  or  seeks 
an  interlocutory  order,  the  application  is  with  us  designated  a  motion. 

The  motion  is  strictly  the  application  to  the  court,  and  should  be 
distinguished  from  the  grounds  or  reasons  upon  which  the  motion  is 
made,  and  also  from  the  instruments  in  form  of  affidavits  or  otherwise, 
which  may  accompany  it  in  support  of  the  reasons  assigned.  To 
illustrate:  A  motion  for  new  trial  is  made  on  the  ground  of  newly 
discovered  testimony,  and  affidavits  of  the  newly  discovered  witnesses  are 
filed  with  it,  showing  what  they  will  swear,  and  also  the  affidavit  of 
the  party  showing  the  discovery  of  the  evidence  by  him  since  the  trial, 
and  negativing  negligence  on  his  part  in  not  having  sooner  discovered 
it.  Here  the  motion  is  the  request  for  the  new  trial.  The  grounds  or 
reasons  of  the  request  are  the  facts  that  there  is  material  testimony 
discovered  by  the  party  since  the  trial  and  the  absence  of  laches  on  his 
part.  The  proof  of  these  grounds  are  the  affidavits  of  the  proposed  wit- 
nesses and  of  the  party,  considered  in  connection  with  the  record  in 
the  case.  While  it  is  well  to  have  these  distinctions  in  mind  on  account 
of  their  theoretical  accuracy,  the  word  "motion"  is  practically  used  to 
cover  both  the  application  or  request  to  the  court  and  the  reasons  assigned 
as  a  basis  for  such  action.  This  is  almost  universally  true  of  motions  in 
writing.2 

The  grounds  for  the  motion  may  be  matters  already  in  the  record,  or 


2  See    statutory   provisions   regarding   motions   for   continuances;    Rev.    Stats. 
1895,  arts.  1276-1278;  for  new  trials,  Rev.  Stats.  1895,  arts.  1371-1374. 


FORMS   OF   MOTIONS.  437 

matters  transpiring  in  the  presence  of  the  court,  or  matters  not  coming 
within  either  of  these  classes.  In  the  first  two  cases  the  court  will  act 
upon  the  record,  or  upon  its  own  knowledge,  as  the  case  may  be ;  in  the 
last,  the  facts  relied  upon  must  be  shown  to  the  court  according  to  the 
rules  of  practice  and  the  nature  of  the  case.  Usually  the  prooi  is  made 
by  affidavits,  voluntarily  given  by  persons  who  know  the  facts,  and  filed 
m  the  court  in  connection  with  the  motion.  When  the  facts  are  known 
to  and  proven  by  the  party  making  the  motion,  the  motion  and  affidavit 
are  usually  put  in  one  instrument. 

FORMS  OP  MOTIONS. 

Motions  may  be  either  oral  or  written.  The  statute  requires  that  all 
motions  filed  must  be  entered  on  the  motion  docket.3  The  Supreme 
Court  refers  to  this  statute  incidentally  in  the  case  of  Houston  v.  James/ 
and  the  reporter  in  the  syllabus  says,  "All  motions  in  the  District  Court 
must  be  in  writing,  filed,"  etc.  Neither  the  statute  nor  the  decision 
says  this;  but  only  that  all  motions  which  are  in  writing  must  be  filed 
and  entered  on  the  motion  docket.  The  difference  is  manifest.  Oral 
motions,  some  of  them  having  most  serious  consequences,  are  made  and 
entertained  every  day.  If  the  plaintiff  neglects  his  case  and  permits  it 
to  remain  on  the  docket  without  pressing  it  with  that  diligence  which 
the  law  requires,  the  defendant  can  move  orally  that  the  case  be  dismissed 
for  want  of  prosecution  and  the  court  will  entertain  and  grant  the 
motion;  and  it  will  do  so  in  a  great  many  other  instances. 

There  is  no  prescribed  form  for  an  oral  motion.  It  is  merely  an  in- 
telligible request  made  to  the  court  to  do  a  certain  thing  in  a  certain 
case.  It  should  be  as  concise  as  is  consistent  with  clearness;  but,  unless 
it  is  a  mere  formal  application  which  is  granted  as  of  course,  it  should 
be  accompanied  by  a  short  statement  of  the  reasons  on  which  the  court's 
action  is  sought,  and,  unless  these  are  of  record  or  have  transpired  in 
the  presence  of  the  court,  they  should  be  supported  by  proofs  either  in 
form  of  affidavits  or,  in  rare  instances,  by  oral  testimony. 

Written  motions  should  be  entitled  and  numbered  with  the  style  and 
number  of  the  case  in  which  they  are  made  and  must  be  filed  with  the 
clerk.  They  should  be  a  plain  and  express  request  for  the  action  de- 
sired of  the  court,  and  they  usually  set  out  the  reasons  on  which  the 
court  is  expected  to  act.  This  should  be  done  clearly,  fully,  and 
logically, — the  same  general  principles  being  followed  that  are  applied 
in  the  preparation  of  pleadings.  No  ground  or  reason  for  granting  the 

3 Acts  1846,  p.  200,  sec.  53;  Rev.  Stats.  1895,  art.  456;  Rules  District  and 
County  Courts,  No.  21. 

4  4  Texas,  170. 


438  MOTIONS. 

motion  can  be  considered  if  not  set  out,  except  a  few  fundamental  matters 
such  as  the  court,  if  advised  of  the  facts,  would  act  upon  in  the  absence 
of  motion.  If  the  reasons  set  out  in  the  motion  are  proven  by  the 
record, — that  is,  by  the  pleadings  of  the  adverse  party,  by  any  action 
of  any  officer  of  the  court  taken  in  the  case  and  shown  by  the  entries 
on  the  dockets  and  minutes  of  the  court,  by  the  original  papers  on  file 
in  the  case,  or  by  the  pleadings  of  the  moving  party  prepared  and 
verified  as  required  by  law  for  such  purposes,  no  further  proof  in 
support  of  the  motion  need  be  made;  in  all  other  instances  the  motion 
must  be  supported  by  evidence,  usually  furnished  by  ex  parte  voluntary 
affidavit  of  the  party  or  of  others  acting  with  or  for  him. 

In  some  instances  statutes  require  that  the  supporting  facts  be  covered 
by  the  motion  and  its  reasons,  as  in  application  for  continuance;5  in 
others,  that  all  the  grounds  be  set  out  either  in  or  in  connection  with 
the  motion,  as  in  motion  for  new  trial,6  to  supply  lost  records,  etc.  In 
all  such  cases  the  statute  must  be  complied  with. 

The  power  of  a  court  to  hear  and  determine  motions  in  a  case  is  not 
ended  by  the  entry  of  final  judgment.  Its  jurisdiction  to  enforce  the 
conclusion  arrived  at  in  any  case  carries  with  it  the  power  to  hear  and 
determine  any  issues  that  may  arise  therein  between  either  of  the  parties 
and  the  officers  of  the  court  as  to  the  proper  execution,  levy,  and  return 
of  the  process,  or  as  to  the  paying  over  of  money  collected  under  it. 


DIFFERENT  KINDS  OF  MOTIONS. 

As  the  power  of  the  court  to  hear  applications  and  make  orders  in 
a  case  begins  even  before  the  regular  institution  of  the  suit,  as  in  case 
of  granting  leave  to  file  a  quo  warranto  petition  or  issue  an  order  for  a 
temporary  writ  of  injunction,  and  extends  to  the  execution  of  the  final 
process  issued,  as  in  cases  of  misconduct  of  an  officer  executing  such 
process,  so  the  occasions  for  such  orders  arise  at  all  times,  and  the 
orders  themselves  which  may  be  desired  are  as  various  as  the  various 
exigencies  of  the  numerous  and  diverse  law  suits  themselves.  Hence  a 
strict  classification  of  the  motions  which  may  be  made  before  the  court 
is  impossible.  They  are,  however,  usually  made  to  secure  one  or  more 
of  the  following  ends: 

First — Some  action  by  the  court  operating  directly  on  the  case,  ad- 
vancing or  retarding  its  progress. 

Second — Some  action  in  the  form  of  an  interlocutory  order,  operating 
on  the  parties  or  on  the  subject  matter  of  the  litigation  or  on  the  thing 
about  which  the  litigation  is  carried  on. 

•Rev.  Stats.  1895,  arts.  1276-1278. 
•Rev.  Stats.  1895,  arts.  1371  et  seq. 


DIFFERENT    KINDS   OF    MOTIONS.  439 

Third — Some  action  regulating  the  conduct  of  an  officer  in  connection 
with  the  litigation. 

Fourth — Some  action  providing  a  special  means  or  agency  for  facili- 
tating the  litigation  or  the  court's  control  over  the  res. 

Fifth — Some  action  directly  controlling  the  adverse  party  as  to  the 
matters  in  litigation. 

Sixth — Some  action  controlling  the  conduct  of  other  parties  so  con- 
nected with  the  litigation  as  to  make  such  conduct  a  proper  subject  for 
judicial  regulation. 

In  the  first  class  are  embraced  applications  for  leave  to  file  special 
kinds  of  cases,  as  quo  warmnto,  to  consolidate  suits,  to  substitute  lost 
papers,  to  change  venue,  to  continue,  postpone  or  advance  the  case,  to 
change  from  one  docket  to  another,  to  set  aside  venire  or  panel  of  jury- 
men, to  withdraw  case  from  jury,  to  direct  verdict,  to  enter  judgment 
non  obstante  verdicto,  to  have  judge  file  conclusions  of  law  and  fact,  fo 
obtain  new  trial,  or  arrest  the  judgment,  to  make  new  parties,  to  revive 
suit,  to  set  aside  order  of  dismissal,  and  others  of  similar  nature. 

The  second  class  embraces  applications  for  attachment,  sequestration, 
garnishment,  temporary  injunction,  alternate  mandamus,  to  sell  property 
in  custody  of  court  pending  the  litigation,  and  for  the  purpose  of  setting 
aside  any  of  the  orders  mentioned  above  or  the  action  of  any  officer 
taken  under  them. 

The  third  embraces  all  applications  to  compel  issuance  of  process  by 
the  clerk,  or  its  service  by  the  sheriff  or  constable,  or  for  correction  of 
any  erroneous  or  imperfect  action  by  any  officer,  as  correcting  a  citation 
improperly  issued,  or  the  return  of  service  on  it;  also  to  compel  proper 
entries  of  all  orders  made  and  judgments  rendered  in  a  pending  suit 
either  at  the  time  made,  or  nunc  pro  tune,  if  not  entered  at  proper  time ; 
to  compel  issuance  of  commission  to  take  deposition,  or  the  attendance 
of  witnesses  before  the  officer  taking  depositions ;  or  to  quash  the  deposi- 
tion as  returned,  or  to  strike  out  certain  answers  in  it;  to  compel  the 
proper  levy  of  or  sale  and  return  under  execution  or  other  final  process, 
or  payment  of  money  collected  under  it. 

The  fourth  embraces  applications  for  order  of  survey;  for  appoint- 
ment of  an  auditor,  or  receiver,  or  master  in  chancery,  or  of  one  or  more 
physicians  to  examine  a  person  whose  physical  or  mental  condition  is 
matter  of  investigation  before  the  court,  and  all  similar  aids  to  the 
hearing  of  the  case  before  the  court. 

The  fifth  embraces  applications  to  compel  security  for  costs,  to  permit 
inspection  of  papers  in  possession  of  adverse  party,  or  to  take  the  person 
of  a  party  into  legal  custody  to  compel  compliance  with  any  lawful  order 
made  by  the  court,  etc. 

The  sixth  embraces  applications  for  attachments  for  witnesses,  placing 
them  under  the  rule,  etc. 

The  foregoing  is  by  no  means  a  complete  enumeration  of  all  the 


440  MOTIONS. 

motions  which  may  be  properly  made  in  a  case;  but  it  comprises  those 
most  important  and  most  frequently  used,  and  will  suffice  for  illustra- 
tion. 

The  detailed  consideration  of  the  several  kinds  of  motions  can  not  be 
taken  up  in  a  work  of  this  kind,  but  must  be  sought  for  in  works  of 
procedure. 


NOTICE  OF  MOTIONS. 

Every  litigant  must  at  his  peril  keep  himself  posted  as  to  the  cause 
of  action  before  the  court  and  all  matter  directly  connected  therewith 
or  growing  out  of  the  manner  of  conducting  the  case, — if  he  is  plaintiff, 
from  the  time  of  instituting  the  suit;  if  he  is  defendant,  from  the  time 
the  citation  requires  him  to  appear  and  answer.  This  obligation  rests 
upon  both  parties  up  to  the  time  that  final  judgment  is  rendered.  He 
must  take  notice  of  everything  done  in  the  progress  of  the  litigation  ex- 
cept those  things  of  which  the  law  expressly  requires  him  to  be  notified. 
After  final  judgment  is  rendered  he  is  charged  with  notice  of  nothing 
unless  the  law  has  expressly  relieved  the  adverse  party  from  the  necessity 
of  giving  notice.  The  parties  to  a  suit  are,  after  judgment,  no  longer 
before  the  court  in  such  way  as  to  be  cognizant  of  its  proceedings  in  the 
same  sense  they  were  after  active  jurisdiction  had  been  acquired  over 
them  and  before  the  rendering  of  the  judgment.7 

The  Legislature  has  recognized  this  difference  in  the  rules  of  practice 
embodied  in  the  following  statutes: 

"Notice  of  motions  in  a  suit  pending  is  given  by  the  filing  of  the 
motion  and  entry  thereof  on  the  motion  docket  during  the  term."8 

"When  a  motion  does  not  relate  to  a  pending  suit,  and  where  the 
time  of  service  is  not  elsewhere  prescribed,  the  adverse  party  shall  be 
entitled  to  three  days  notice  of  the  motion."0 

The  first  of  these  statutes  covers  the  general  question  of  notice  of 
motions  made  in  pending  suits  and  desired  to  be  acted  upon  in  term 
time.  It  does  not,  however,  cover  applications  made  in  such  cases  to 
the  judge  in  vacation  nor  some  special  motions  in  which  notice  is  re- 
quired by  the  statutes  authorizing  them.  In  cases  of  the  latter  kind 
the  statutes  are  to  be  consulted  and  their  provisions  exactly  complied 
with. 

When  notice  beyond  the  filing  of  the  motion  is  required  and  there 
are  no  express  provisions  regarding  it,  it  must  be  given  in  writing.  It  is 

'  De  Witt  v.  Monroe,  20  Texas,  289. 
8Eev.  Stats.  1895,  art.  1458. 
'  Rev.  Stats.  1895,  art.  14GO. 


NOTICE   OF   MOTIONS.  441 

prepared  by  the  party  or  his  attorney  and  signed  by  him — not  by  the 
clerk,  as  in  case  of  legal  process.  It  should  show,  by  style  and  number, 
the  case  in  which  the  motion  is  made,  and  should  indicate  clearly  the 
nature  and  grounds  of  the  motion.  No  special  form  is  required ;  but,  as 
its  purpose  is  to  inform  the  party  of  the  nature  of  the  action  sought  and 
the  reasons  for  such  action,  it  must  be  full  enough  to  do  this  with 
reasonable  certainty.  It  must  also  indicate  the  time  and  place  of  hearing, 
unless  the  action  be  of  such  nature  that  the  law  fixes  the  time  and 
place,  which  is  usually  the  case  with  motions  before  a  court  in  a  pending 
suit.  In  some  instances,  as  in  notices  of  filing  of  interrogatories  to  take 
depositions,  the  notice  is  filed  with  the  clerk  and  he  issues  a  copy  and  a 
precept  requiring  the  sheriff  to  serve  the  copy  on  the  adverse  party.  In 
these  cases,  in  absence  of  any  special  statutory  provision,  the  service 
may  be  made  by  any  officer  authorized  to  serve  process  from  the  court, 
or  by  any  private  party  who  is  competent  to  testify  as  a  witness.  The 
service  may  be  had  either  on  the  party  or  on  his  attorney  of  record ;  and 
is  made  by  delivering  a  copy  of  the  notice  to  the  party  served,  if  he  is  a 
resident  of  the  county  where  suit  is  pending,  or  of  such  copy  together 
with  a  copy  of  the  motion  and  accompanying  papers,  if  he  is  a  non- 
resident of  the  county.  If  the  service  is  made  by  an  officer,  his  official 
return  as  upon  regular  process  from  the  court  is  sufficient;  if  made  by 
one  not  an  officer,  the  return  must  be  verified  by  the  person  making  it. 
In  either  case  the  return  is  prima  facie  proof  of  the  matters  recited,  but 
in  neither  is  it  conclusive.10 

The  same  rules  are  applied  when  the  motion  is  not  in  a  pending 
suit,  except  that  service  must  be  had  upon  the  party  himself  and  not 
upon  his  attorney  of  record. 

All  parties  whose  interests  would  be  adversely  affected  by  the  granting 
of  the  motion  must  be  notified.  Where  the  motion  is  in  a  pending 
suit,  we  have  seen  that  filing  the  motion  and  having  it  docketed  is  all 
that  is  required  as  notice,  but  this  rule  is  limited  to  parties  to  the  suit 
actually  before  the  court.  If  any  other  person  is  adversely  interested  and 
is  sought  to  be  affected  by  the  motion,  he  must  be  duly  served  with 
notice  in  conformity  to  the  rules  discussed  above.  If  the  motion  is  not  in 
a  pending  suit,  but  is  made  after  rendition  of  final  judgment,  then  all 
the  adverse  parties  to  the  litigation  must  be  notified.  This  is  illustrated 
in  the  case  of  De  Witt  v.  Monroe,11  in  which  a  sale  of  property  had  been 
made  to  satisfy  a  judgment  and  the  judgment  had  been  credited  with 
the  amount  of  the  proceeds.  The  plaintiffs  moved  to  set  aside  the  sale 
and  credits  and  to  have  the  judgment  revived  and  declared  good  for 
the  whole  amount.  They  did  not  give  the  defendants  notice  of  the 

10  Rev.  Stats.  1895,  art.  1457. 

11  20  Texas,  289. 


442  MOTIONS. 

motion.  The  court  heard  the  motion,  set  aside  the  sale,  and  restored 
the  judgment.  The  Supreme  Court  reversed  the  judgment  of  the  district 
court,  saying:  "That  there  must  have  been  notice  of  this  motion  given 
to  the  defendants  is  almost  too  plain  for  controversy.  *  *  *  Their 
interests  were  being  adjudicated  and  they  had  a  right  to  be  notified  and 
then  to  be  heard  by  the  court  making  the  adjudication.  This  is  a 
fundamental  principle  applicable  to  all  proceedings  of  a  court  of  justice 
at  every  stage  of  their  progress/' 

If  the  interests  of  third  parties  have  intervened  they  must^  also  be 
made  parties.12 


TIME  AND  MANNER  OP  HEARING  MOTIONS. 

The  time  and  manner  of  hearing  motions  are  regulated  by  statute  and 
rules  of  court,  as  follows: 

"The  clerk  shall  keep  a  motion  docket  in  which  he  shall  enter  every 
motion  filed  in  his  court,  the  number  of  the  suit  in  which  it  is  made, 
if  it  relates  to  a  suit  pending,  the  name  of  the  parties  and  their  attorneys, 
with  a  brief  statement  of  the  nature  of  the  motion."13 

"The  clerk  shall  keep  a  motion  docket  in  which  all  motions,  when 
filed,  shall  be  placed,  with  names  of  the  parties  and  counsel,  with  the 
date  of  the  filing  and  its  number  and  the  number  of  the  case,  which 
filing  shall  be  considered  notice  of  such  motion  before  the  continuance  or 
final  disposition  of  the  case  for  the  term,  except  where  it  is  otherwise 
provided  by  statute.14 

,  "All  motions  relating  to  a  suit  pending,  which  do  not  go  to  the 
merits  of  the  case,  may  be  disposed  of  at  any  time  before  the  trial 
of  the  cause."15 

"All  motions  not  relating  to  a  suit  pending  shall  be  taken  up  and 
disposed  of  in  their  order  as  othei*  suits  are  required  to  be.16 

"The  court  will  set  apart  a  particular  day  each  week  of  the  term, 
when  the  motions  previously  made,  in  which  proper  notice  has  been 
given,  shall  be  determined,  if  urged,  unless  for  good  cause  they  are 
postponed  for  a  day  during  the  term  or  continued  by  consent  to  the 
next  term. 

"When  notice  shall  be  given  of  objections  to  the  form  or  manner  of 
taking  and  returning  depositions,  either  party  may  require  it  to  be  put 

12  Toler  &  Crosby  v.  Ayres,  1  Texas,  400 ;  McKinney  v.  Jones,  7  Texas,  598. 

18  Rev.  Stats.  1895,  art.  1456. 

"District  and  County  Court  Rule  No.  21. 

"Rev.  Stats.  1895,  art.  1459. 

"Rev.  Stats.  1895,  art.  1461. 


TIME   AND   MANNER   OF   HEARING   MOTIONS.  443 

on  the  motion  docket  and  tried  as  other  motions ;  provided,  if  not  sooner 
tried,  it  shall  be  decided  before  either  party  shall  be  required  to  an- 
nounce readiness  for  trial  on  the  facts. 

"All  dilatory  pleas  and  all  motions  and  exceptions  relating  to  a  suit 
pending  which  do  not  go  to  the  merits  of  the  case  shall  be  tried  at  the 
first  term  at  which  the  attention  of  the  court  shall  be  called  to  the 
same,  unless  passed  by  agreement  of  parties  with  the  consent  of  the 
court;  and  all  such  pleas  and  motions  shall  be  first  called  and  disposed 
of  before  the  main  issue  on  the  merits  is  tried. 

"All  motions  which  go  to  the  merits  of  the  case,  and  all  exceptions, 
general  and  special,  which  relate  to  the  substance  or  the  form  of  the 
pleadings,  shall  be  decided  at  the  first  term  of  the  court  when  the  case 
is  called  in  the  regular  order  for  trial  on  the  docket,  if  reached,  whether 
there  be  an  announcement  on  the  facts  or  not,  unless  passed  by  agreement 
of  the  partie's  with  the  consent  of  the  court."17 

Kule  23  above  must  be  taken  in  connection  with  the  statute  which 
requires  the  court  to  pass  on  such  objections  to  depositions  at  the  first 
term  after  the  depositions  have  been  returned.18 

From  the  foregoing  it  is  apparent  that  the  regular  method  of  bring- 
ing a  written  motion  in  a  pending  suit  to  the  attention  of  the  court  is 
to  file  it  with  the  clerk  and  have  it  entered  regularly  upon  the  motion 
docket.  It  is  the  duty  of  the  court  to  designate  one  day  in  the  week  for 
taking  up  this  docket.  At  that  time  the  court  calls  the  motions  on  this 
docket  in  their  regular  order,  and  as  each  is  reached  it  should  be  dis- 
posed of  unless  for  some  cause,  to  be  judged  of  by  the  court,  it  is  post- 
poned until  some  other  time — either  the  next  call  of  the  docket  or 
some  certain  time  set  for  hearing  it.  As,  however,  many  motions  relate 
to  matters  requiring  immediate  attention,  another  rule  provides  that 
they  may  be  called  up  at  any  time,  This  calling  up  at  irregular  times  is 
largely  within  the  discretion  of  the  court,  and  the  hearing  will  be  taken 
up  or  set  for  such  time  as  the  circumstances  of  the  case  make  just  and 
expedient.  If  any  preliminary  motion  in  a  pending  case  is  undisposed 
of  when  the  case  itself  is  reached  on  the  trial  docket,  it  must  then  be 
called  up,  or  in  most  cases  it  will  be  considered  as  waived  and  the  party 
can  not  insist  on  it  at  a  later  time  in  the  trial  court  nor  take  advantage 
of  it  on  appeal. 

If  the  case  in  which  the  motion  is  made  has  been  determined,  the 
motion  takes  its  place  on  the  regular  trial  docket  and  is  tried  as  other 
cases. 

Motions  in  pending  cases  are  tried  by  the  judge.  Neither  party  is 
entitled  to  a  jury.  Motions  not  in  pending  cases  are  disposed  of  as  other 
suits  of  similar  import. 

11  District  and  County  Court  Rules,  Nos.  22,  23,  24,  25. 
"Rev.  Stats.  1895,— 


444  MOTIONS. 

It  is  not  usual  in  motions  in  pending  cases  to  hear  oral  testimony.  If 
it  involves  facts  outside  of  the  record,  the  party  making  the  motion  files 
affidavits  by  himself  or  others  and  the  opposite  party  can  file  controvert- 
ing affidavits. 

In  rare  cases  oral  testimony  will  be  received. 

In  motions  made  in  suits  not  pending,  oral  testimony  is  usually 
received  and  both  parties  may  introduce  evidence  under  the  same  rules 
that  govern  in  ordinary  cases. 

Upon  conclusion  of  the  hearing,  if  during  term  time,  the  court 
renders  its  decision  and  it  is  entered  in  the  minutes.  If  the  hearing  i& 
before  a  judge  in  vacation,  he  makes  a  minute  of  the  proceedings  and 
conclusion  arrived  at  and  furishes  this  to  the  clerk  of  the  court,  who 
enters  it  on  the  minutes  of  his  court.  Subsequently  the  case  will  be 
conducted  with  reference  to  the  order  and  entry  in  the  same  manner  as 
if  they  had  been  made  in  term  time.  The  court  has  large  discretion  in 
the  matter  of  costs  in  passing  upon  motions,  but  they  are  usually  taxed 
against  the  party  against  whom  the  order  is  rendered. 


ABATEMENT,   DISCONTINUANCE,    AND   DISMISSAL.  445 


CHAPTER  XVIII. 

ABATEMENT,   DISCONTINUANCE,   AND   DISMISSAL   FOR 
CAUSES  ARISING  AFTER  SUIT  BROUGHT. 

The  terras  used  in  the  Texas  statutes1  to  indicate  the  termination  of  a 
suit  before  a  trial  and  decision  on  the  merits  has  been  had  are  "abate- 
ment" and  "discontinuance."  Dismissal,  though  a  common  word  in  the 
authorities,  does  not  occur  in  the  statute.  This  is  a  somewhat  broader 
term  than  those  used  in  the  statute,  and  is  frequently  loosely  used  to  indi- 
cate the  ending  of  a  case  in  any  way  before  a  hearing  and  adjudication 
on  the  merits.  The  authorities  make  a  distinction  between  the  meaning 
given  the 'word  abatement  in  common  law  and  equity  practice,  holding 
that  in  the  former  it  means  the  absolute  determination  of  the  suit  and  in 
the  latter  "only  a  state  of  suspended  animation"  from  which  it  could  be 
revived  by  proper  action.2 

It  is  apparent  from  the  statute  in  its  present  form  and  also  from  the 
-earlier  enactments  which  have  developed  into  the  present,  that  in  our 
law  the  term  "abatement''"  is  used  in  the  common  law  sense  of  absolute 
ending  of  the  suit  and  signifies  such  termination  in  favor  of  some  or  all 
of  the  defendants  by  operation  of  law,  or  by  act  of  the  court,  not  by  the 
procurement  of  the  plaintiff,  but  against  his  will ;  discontinuance,  how- 
ever, with  the  possible  exception  of  its  use  at  the  end  of  article  1247, 
means  the  voluntary  abandonment  of  the  case  by  the  plaintiff,  as  to  one 
or  more  of  the  defendants. 


Abatement  by  Death  of  Parties. 

The  most  frequent  cause  of  the  abatement  of  suits  and  the  one  giving 
rise  to  the  most  difficult  questions  is  the  death  of  one  or  more  parties  to 
the  litigation.  On  this  subject  the  early  common  law  was  very  simple. 
The  death  of  any  party  to  a  common  law  action  terminated  it  absolutely 
and  nothing  more  could  be  done  in  the  case.3  The  right  of  the  proper  rep- 
resentatives of  the  deceased  plaintiff  to  bring  another  suit  or  the  liability 
of  the  proper  representatives  of  the  deceased  defendant  to  be  sued  again 

'Rev.  Stats.  1895,  title  30,  chap.  7. 

2  Life  Assn.  of  America  v.  Goode,  71  Texas,  96,  8  S.  W.,  G39. 

•Alexander  v.  Barfield,  6  Texas,  402;  Warren  v.  Furstenheim,  1  L.  R.  A.,  40; 
Schreiber  v.  Sliarpless,  110  U.  S.,  76. 


446  ABATEMENT,   DISCONTINUANCE,   AND   DISMISSAL. 

was  altogether  a  different  question  and  was  determined  by  different  con- 
siderations. In  many  instances,  the  cause  of  action  survived  in  favor  of 
the  estate  of  the  deceased  plaintiff  or  against  the  estate  of  the  deceased 
defendant,  although  the  suit  pending  at  the  time  of  the  party's  death 
could  not  be  further  prosecuted.  Much  of  the  confusion  in  the  law  on 
this  subject  has  grown  out  of  the  failure  to  recognize  this  distinction.* 
Whether  or  not  a  cause  of  action  exists  at  the  time  a  suit  is  begun  is  a 
matter  of  substantive  law;  whether  or  not  a  suit  properly  begun  shall 
before  hearing  on  the  merits  be  abated  because  of  some  event  transpiring 
since  its  institution  is  a  matter  of  practice  or  procedure,  yet  where  the 
abatement  of  the  suit  depends  upon  the  extinguishment  of  the  cause  of 
action,  the  intelligent  discussion  of  the  latter  necessarily  involves  the 
former. 

The  Texas  statutes  enacted  prior  to  18955  recognized  the  common  law 
doctrine  that  death  of  a  party  destroyed  some  causes  of  action  and  left 
others  unaffected ;  but  they  did  not  undertake  to  determine  and  declare 
what  the  common  law  doctrine  was,  nor  to  interfere  in  any  way  with  its 
operation.  All  their  provisions  were  with  regard  to  the  practice  in  those 
cases  in  which  the  cause  of  action  continued,  or  "survived"  as  expressed 
in  them,  and  regulated  the  practice  in  such  cases. 

In  1895,6  the  Legislature  adopted  a  different  policy  and  changed  the 
rules  of  the  common  law  as  to  abatement  of  some  causes  of  action,  which 
had  not  theretofore  survived  the  death  of  the  party,  provided  suit  had 
been  brought  thereon  before  the  death  occurred.  This  statute  has  no  ap- 
plication to  cases  in  which  the  person  having  the  cause  of  action,  or 
against  whom  it  exists,  dies  prior  to  the  filing  of  the  suit.  As  to  such 
causes  of  action  the  common  law  rules  are  still  in  force.  It  is  therefore 
important  to  ascertain,  if  we  can,  what  the  common  law  rules  on  this 
subject  are.  The  task  is  far  from  easy.  The  earliest  discussions  seem  to 
teach  that  all  contract  liabilities  survived  and  all  tort  liabilities  died 
with  the  death  of  either  party.7  The  word  tort  was  evidently  used  in 
these  cases  in  a  much  more  restricted  sense  than  it  is  at  present,  and  many 
causes  of  action  now  regarded  as  tortious  survived  the  death  of  the  par- 
ties even  at  that  time.  In  later  cases,  the  causes  of  action  which  died 
with  the  person  were  limited  to  those  based  on  injuries  to  the  person  as 
distinguished  from  injuries  to  property  or  property  rights. 

In  Tanney  v.  Edwards,8  the  court,  through  Judge  Moore,  quotes  with 
approval  from  1  Chitty's  Pleadings,  68,  the  following  test :  "In  all  case? 

*  Warren  v.  Furstenheim,  1  L.  R.  A.,  40;  Schreiber  v.  Sharpless,  110  U.  S.,  76. 

•Acts  1836,  p.  203;  Acts  1846,  p.  363;  Rev.  Stats.  1879,  title  29,  chap.  7. 

•Rev.  Stats.  1895,  art.  3353a. 

T  Watson  v.  Loop,  12  Texas,   14;   3  Blackstone,  302. 

•27  Texas,  225. 


DEATH   OF   PARTIES.  447 

of  injuries  to  the  person,  whether  by  assault,  battery,  false  imprisonment, 
slander,  or  otherwise,  if  either  the  party  who  received  or  committed  the 
injury  die  no  action  can  be  supported  either  by  or  against  the  executors 
or  other  personal  representatives."  This  rule  was  applied  in  a  case  of 
malicious  prosecution  where  both  parties  died  after  judgment  in  district 
court  and  while  an  appeal  was  pending.  The  case  has  been  overruled 
as  to  abatement  after  judgment,9  but  has  been  approved  as  to  the  common 
law  doctrine  of  the  survival  of  causes  of  action. 

In  Eailway  Company  v.  Freeman,10  our  Supreme  Court  adopts  the 
following  language  from  a  New  York  decision :  "Mere  personal  torts  die 
with  the  party  and  are  not  assignable.  Such  are  actions  for  slander, 
libel,  assault  and  battery,  false  imprisonment,  criminal  conversation, 
seduction,  etc.  On  the  other  hand,  when  the  injury  affects  the  estate 
rather  than  the  person,  when  the  action  is  brought  for  the  damage  to  the 
estate  and  not  for  injury  to  the  person,  personal  feelings,  or  character, 
the  right  of  action  could  be  bought  and  sold.  Such  right  of  action,  upon 
the  death,  bankruptcy,  or  insolvency  of  the  party  injured,  passes  to  the 
executor  or  assignee  as  part  of  his  assets,  because  it  affects  his  estate  and 
not  his  personal  rights." 

In  Jenkins  v.  French,11  the  Supreme  Court  of  New  Hampshire  says : 
"The  line  of  demarcation  separating  those  actions  which  survive  from 
those  which  do  not  is  that  in  the  first  the  wrong  complained  of  affects  pri- 
marily and  principally  property  and  property  rights  and  the  injury  to 
the  person  is  merely  incidental,  while  in  the  latter  the  injury  complained 
of  is  to  the  person  and  the  property  and  the  property  rights  affected  are 
incidental/' 

The  Act  of  1895  is  in  these  words:  "Causes  of  action  upon  which  suit 
has  been  or  may  hereafter  be  brought  by  the  injured  party  for  personal 
injuries  other  than  those  resulting  in  death,  whether  such  injuries  be  to 
the  health  or  to  the  reputation,  or  to  the  person  of  the  injured  party, 
shall  not  abate  by  reason  of  his  death,  nor  by  reason  of  the  death 
of  the  person  against  whom  such  action  shall  have  accrued ;  but  in  case  of 
the  death  of  either  or  both,  such  cause  of  action  shall  survive  to  and  in 
favor  of  the  heirs  and  legal  representatives  of  such  injured  party,  and 
against  the  person,  receiver,  or  corporation  liable  for  such  injuries  and 
his  legal  representatives;  and  so  surviving,  such  cause  may  hereafter  be 
prosecuted  in  like  manner  and  with  like  legal  effects  as  would  a  cause  of 
action  for  injuries  to  personal  property."12 

It  seems,  therefore,  that  if  the  cause  of  action  is  one  growing  out  of 

•Gibbs  v.  Belcher,  30  Texa3,  81. 

10  57  Texas,  158. 

11  58  N.  H.,  533. 

13  Rev.  Stats.  1895,  art..  3353a. 


448  ABATEMENT,    DISCONTINUANCE,    AND   DISMISSAL. 

a  violation  of  personal  rights  as  contradistinguished  from  property 
rights,  the  death  of  either  the  injured  person  or  the  wrongdoer  before 
suit  is  brought  will  extinguish  the  cause  of  action.  If  it  be  for  personal 
injuries,  whether  to  the  health,  reputation,  or  body,  and  suit  is  brought 
before  the  death  of  either  party,  the  cause  of  action  will  survive  and  the 
suit  need  not  abate  by  reason  of  subsequent  death  of  either  party. 

If,  however,  the  cause  of  action  be  personal  in  its  nature,  but  is  not 
for  injuries  sustained  in  health,  reputation,  or  body,  such  as  suits  for 
injuries  to  the  feelings  merely,  as  many  telegraph  cases,  for  breach  of 
promise  of  marriage,  and  others,  the  statute  has  no  application  and  the 
cause  of  action  ends  with  death,  whether  suit  has  been  previously  in- 
stituted or  not,  unless  it  has  proceeded  to  a  verdict ;  if  it  has,  the  cause 
of  action  is  merged  in  the  verdict  and  survives.13 

Cases  affecting  personal  status  or  condition,  as  divorce,  or  right  to 
some  position  of  trust,  and  others14  of  similar  kinds,  of  course  die  with 
the  party  whose  status  is  to  be  adjusted  or  rights  determined. 

Suits  or  actions  merely  possessory,  or  affecting  the  title  merely,  in 
which  no  damages  or  money  judgment  is  sought,  abate  on  the  absolute 
destruction  of  the  thing  about  which  the  litigation  is  being  carried  on. 

There  are  also  some  cases  that  arise  ex  contractu  which  are  not  em- 
braced in  the  statute  above  quoted  and  which  do  not  survive  the  death 
of  the  defendant,  as  suits  for  penalties  on  bonds.15 

Under  our  liberal  practice  as  to  joinder  of  causes  of  action  it  not  in- 
frequently occurs  that  part  of  the  matter  in  controversy  in  a  suit  will 
survive  the  death  of  a  party  and  part  will  not.  When  this  is  the  case  and 
the  death  of  the  parties  is  suggested,  the  court  should  abate  so  much  of 
the  suit  as  is  extinguished  by  the  death,  and,  if  the  remainder  is  within 
its  jurisdiction,  should  proceed  to  try  it.  If  the  matters  surviving  are 
not  within  its  jurisdiction,  then  it  should  dismiss  the  whole  proceed- 
ing.10 


Further  Statutory  Provisions. 

We  can  now  consider  intelligently  title  30,  chapter  7,  of  our  Eevised 
Statutes  containing  the  rules  of  procedure  in  case  of  death  of  parties 
pending  litigation.  The  first,  second,  and  third  articles  in  this  chapter 
prescribe  the  practice  in  cases  in  which  the  sole"  plaintiff  or  defendant 
dies  after  suit  is  brought  and  before  verdict,  in  cases  in  which. the  cause 

13  Rev.  Stats.  1895,  art.  1251. 
"Williams  v.  Mullens,  43  Texas,  CIO. 

15  State  v.  Schuenemann,  46  S.  W.,  260.  For  interesting  discussion  of  what  are 
penal  liabilities  and  what  are  not,  see  Aylesworth  v.  Curtis,  33  L.  R.  A.,  110. 

10Dwyer  v.  Bassett,  29  S.  W.,  815. 


DEATH    OF   PARTIES.  449 

of  action  survives.  As,  at  the  time  this  statute  was  adopted,  there  was  no 
statutory  regulation  of  the  survival  of  causes  of  action,  its  provisions  are 
confined  to  cases  of  survival  at  common  law.  The  Act  of  1895  has  sub- 
stantially the  same  provisions  as  to  practice  in  cases  of  survival  as  now 
regulated  by  statute.  The  effect  of  these  statutes  is  that  if  it  is  the 
plaintiff  who  dies  his  executor  or  administrator,  or,  in  case  there  is  no 
necessity  for  administration,  his  heirs  can  come  in  and  make  him  or 
them  parties  plaintiff  and  the  suit  will  proceed.  If  no  such  person 
comes  forward  at  the  first  term  after  the  death,  the  defendant  can  have 
the  clerk  issue  a  scire  facias  to  such  representatives.  If  he  does  not  ap- 
pear and  prosecute  the  suit  by  the  appearance  day  of  the  first  term  of  the 
court  after  such  notice,  the  defendant  can  have  the  suit  dismissed  for 
want  of  prosecution. 

If  it  is  the  defendant  who  dies,  the  plaintiff  can  suggest  the  death  in 
open  court  or  file  a  petition  with  the  clerk  in  vacation,  setting  up  the 
iact  of  death  and  can  secure  a  scire  facias  against  the  executor,  adminis- 
trator, or  heirs,  as  the  case  may  require,  of  the  deceased  defendant ;  and 
upon  service  on  such  person,  can  proceed  with  the  case  against  him. 
If  there  is  administration  on  the  estate,  the  judgment  can  not  be  col- 
lected by  process  from  the  court  rendering  it,  but  must  be  certified  to  the 
proper  probate  court  for  payment  in  due  order  of  administration.17 
"Where  there  are  two  or  more  plaintiffs  or  defendants,  and  one  or  more 
of  them  die,  if  the  cause  of  action  survive  to  the  surviving  plaintiffs 
against  the  surviving  defendants,  the  suit  shall  not  abate  by  reason  of 
such  death,  but  upon  suggestion  of  such  death  being  entered  upon  the 
record  the  suit  shall,  at  the  instance  of  either  party,  proceed  in  the  name 
of  the  surviving  plaintiffs  or  against  the  surviving  defendants,  as  the 
case  may  be/'18 

The  ancient  common  law  doctrine  of  survivorship  in  joint  contracts 
or  other  joint  interests  has  never  been  the  law  in  Texas,  and  this  statute 
would  seem  to  have  no  application  in  case  of  plaintiffs  except  in  suits 
"by  partners  and  possibly  by  joint  tenants  in  possessory  actions.  The 
surviving  partner  or  partners  can  sue  on  partnership  debts,19  and  if  suit 
had  been  brought  by  partners  and  one  of  them  should  die,  the  survivor 
could  proceed  with  the  case  without  bringing  in  the  representatives  of  the 
deceased20  though  he  may  do  the  latter  if  he  prefers.21 

As  regards  defendants,  this  article  in  connection  with  articles  1257- 

17  Rev.  Stats.  1895,  art.  2332. 

18  Rev.  Stats.  1895,  art.  1250. 

18  Watson  v.  Miller,  55  Texas,  290. 
20  Dunman  v.  Coleman,  59  Texas,  204. 
21Gunter  v.  Jarvis,  25  Texas,  582. 
29 — Pleadings. 


450  ABATEMENT,    DISCONTINUANCE,   AND   DISMISSAL. 

1259  has  a  far  reaching  effect,  which  has  already  been  considered  in  the 
chapters  on  Parties,22  and  is  further  treated  in  concluding  portions  of 
this  chapter. 

Article  1249  authorizes  the  substitution  of  the  successor  in  the  rep- 
resentation of  the  estate,  or  of  the  heirs  in  case  no  further  administration 
is  necessary,  upon  the  death  of  an  administrator  or  executor  pending  a 
suit,  whether  he  be  plaintiff  or  defendant. 

Articles  1252  and  1253  prevent  the  abatement  of  a  suit  by  reason  of  the 
marriage  of  a  feme  sole,  whether  she  be  plaintiff  or  defendant ;  and  pro- 
vide for  bringing  the  husband  into  the  suit.  The  process  is  simple  and 
needs  no  explanation. 

Article  1254  gives  to  the  real  party  for  whose  benefit  the  suit  is  being 
prosecuted  in  the  name  of  another  the  right  to  come  in  upon  the  death 
of  the  original  plaintiff  and  conduct  the  suit. 

If  the  interest  of  the  party  desiring  to  come  in  does  not  appear  on  the 
record,  the  heirs  or  representatives  of  the  deceased  party  must  be  brought 
in  and  the  questions  of  right  between  them  ascertained. 

Article  1250  relates  to  suits  for  damages  for  injuries  resulting  in 
death  brought  by  designated  persons  given  that  right  by  the  Constitution 
and  statutes.  Such  a  suit  may  be  brought  by  any  one  or  all  or  by  any 
number  of  the  statutory  beneficiaries,  but  must  be  brought  for,  the 
benefit  of  all  interested.23  If  suit  has  been  brought  by  one  of  these  par- 
ties and  he  dies,  this  statute  gives  the  right  to  any  one  or  all  the  other 
beneficiaries  to  substitute  themselves  as  plaintiffs  and  proceed  with  the 
suit.  To  the  same  effect  is  article  3024.  When  the  last  person  en- 
titled as  plaintiff  dies  the  suit  abates.24 

Article  1251  prevents  abatement  of  suit  by  reason  of  death  of  either 
party  occurring  between  verdict  and  judgment.  This  statute  does  not 
seem  to  have  been  passed  upon  by  the  higher  courts.  The  rule  announced 
in  it  has  been  frequently  enforced  in  other  States,  even  without  statu- 
tory authority,25  and  there  seems  to  be  no  doubt  as  to  the  validity  of  the 
judgments  so  rendered. 


ABATEMENT  UPON  DISSOLUTION  OP  A  CORPORATION. 

The  dissolution  of  a  private  corporation  may  be  effected  in  several 
ways, — first,  by  expiration  of  time  fixed  for  its  continuance;  second,  by 
forfeiture  of  its  charter;  third,  by  voluntary  surrender  of  its  charter 

-•  Supra. 

-3  Infra.  Parties. 

24  Rev.  Stats.  1895,  art.  3025. 

25  In  re  Cook's  Estate  (Col.),  1  L.  R.  A.,  567,  and  notes;  Heiker  v.  Kelley  (Ind.), 
15  L.  R.  A..  622. 


DISSOLUTION    OF    CORPORATION.  451 

and  acceptance  of  same  by  the  State ;  and  fourth,  by  repeal  of  the  charter 
where  this  right  is  reserved  by  the  State  in  making  the  grant. 

At  common  law  the  effect  of  dissolution,  no  matter  how  brought 
about,  was  to  abate  all  suits  for  or  against  the  company.  Neither  stock- 
holders nor  creditors  had  any  further  rights  in  the  property  and  the  lia- 
bilities of  all  its  debtors  were  discharged.  Personal  property  escheated 
to  the  government  and  real  property  reverted  to  the  grantors.26  No 
cause  of  action  either  for  or  against  the  corporation  survived  its 
death.  Courts  of  equity  years  ago  repudiated  this  doctrine,  and  the  sub- 
stantive rights  of  creditors  and  the  liabilities  of  debtors  are  not  now  more 
affected  by  the  dissolution  of  a  corporation  than  by  the  death  of  a  natural 
person.  The  courts  of  Texas  have  uniformly  held  that  upon  the  recog- 
nized insolvency  of  a  corporation  or  upon  the  dissolution  thereof  the  as- 
sets of  the  concern  are  a  "trust  fund"  for  the  benefit  of  creditors  and 
stockholders,  to  be  administered  for  them  through  the  corporate  offi- 
cers,27 or  by  a  receiver  appointed  by  some  court  having  jurisdiction. 

The  statutes,  while  they  do  not  provide  for  all  contingencies,  indicate 
the  same  policy.28 

The  exact  effect  of  these  statutes  is  in  some  instances  hard  to  deter- 
mine. It  has  been  held  by  our  Supreme  Court  that  they  do  not  apply 
to  a  foreign  corporation  doing  business  in  this  State,  and  that  suit 
against  such  a  company  abates  upon  the  dissolution  of  the  company.29 
The  court  did  not  deem  it  necessary  to  decide  whether  this  was  a  common 
law  abatement,  cutting  off  the  right  of  recovery,  or  an  equitable  one, 
allowing  such  a  right,  since  under  the  facts  of  the  case  the  equitable 
right  to  revive  was  lost  by  lapse  of  time,  if  it  had  ever  existed. 

There  have  been  no  authoritative  constructions  of  these  acts  as  to  do- 
mestic corporations.  If  the  dissolution  is  occasioned  by  forfeiture  of  the 
charter  judicially  declared,  the  statutes  contemplate  the  appointment 
of  a  receiver  by  the  court  adjudging  the  forfeiture  and  the  settlement  of 
all  the  affairs  of  the  company  by  him  under  the  supervision  of  the 
court.30 

It  is  the  judgment  of  forfeiture  that  terminates  the  life  of  the  corpora- 
tion and  until  that  judgment  takes  effect  the  corporation  may  sue  and 
be  sued  as  such.31 


:a  Thompson  on  Corp.,  sees.  6718  et  seq. ;  Morowitz  on  Corp.,  sec.   1031;  Clark 
on  Corp.,  248,  et  seq. 

"Lyons  Thomas  Hardware  Co.  v.  Perry  Stove  Mfg.  Co.,  86  Texas,   143,  24  S. 
\V..    10. 

-s  Rev.  Stats.  1895,  arts.  680,  682,  683,  684,  4554,  4555,  4556. 
29  Life  Assn.  v.  Goode,  71  Texas,  94,  8  S.  W.,  639. 

80  Rev.  Stats.  1895.  art.  14G5.  et  seq.;  Railway  Company  v.  State,  75  Texas.  434, 
12  S.  W.,  690. 

31  Receiver  v.  Stanton,  86  Texas,  628,  26  S.  W.,  615. 


452  ABATEMENT,   DISCONTINUANCE,   AND   DISMISSAL. 

The  statutes  make  no  express  provision  as  to  the  details  of  the  practice, 
and  no  decision  has  declared  just  what  should  be  done;  but  it  seems 
that  the  proper  practice,  upon  the  forfeiture  of  the  charter  and  the  ap- 
pointment of  a  receiver,  is  for  the  receiver  to  appear  voluntarily  as  the 
representative  of  the  company  in  all  pending  litigation,  and  if  he  does 
not  do  so,  then  for  the  opposite  party  to  suggest  the  forfeiture  to  the 
court  in  which  the  suit  is  pending,  and  if  the  company  is  plaintiff,  on 
failure  of  the  receiver  to  make  himself  a  party,  have  the  suit  abated  for 
want  of  prosecution,  or  if  the  company  is  defendant,  have  the  receiver 
made  a  party.  It  must  be  remembered  that  it  is  the  dissolution  of  the 
company  and  not  the  appointment  of  a  receiver  that  is  ground  for  abate- 
ment; and  if  there  is  no  judgment  of  forfeiture,  the  appointment  of  a 
receiver  for  other  reasons  does  not  abate  the  suits  pending  against  the 
company. 

It  is  said  that  the  special  acts  of  incorporation  or  the  general  enabling 
act  under  which  the  company  is  formed  may  be  so  worded  that  certain 
acts  or  omissions  designated  shall  ipso  facto  work  a  forfeiture  of  charter. 
Such  causes  would  not  come  under  the  conditions  just  considered,  but 
would  be  more  analagous  to  dissolution  by  lapse  of  time.  There  are  no 
adjudications  in  this  State  on  this  subject.  The  practice  in  these  cases 
would  probably  be  governed  by  the  rule  laid  down  in  article  682.  It  is 
true  that  this  article,  in  terms,  applies  only  to  corporations  "already 
in  existence,"  and  that  the  right  to  revive  litigation  pending  at  the  time 
of  the  dissolution  is  not  expressly  given.  The  officers  of  the  defendant 
company  are,  however,  made  trustees  with  full  power  to  settle  its  affairs 
and  to  maintain  and  defend  any  judicial  proceedings  regarding  the  as- 
sets, and  this  would  seem  to  be  broad  enough  to  cover  the  continuation 
of  pending  suits.  There  is  a  special  statute  regarding  sold  out  railroad 
companies  which  makes  the  directors  or  managers  of  such  companies 
trustees  to  wind  up  their  affairs,  unless  some  one  else  be  legally  ap- 
pointed. In  such  cases  there  is  express  authority  for  the  substitution  of- 
these  trustees  as  parties  in  pending  suits.32 

In  cases  of  surrender  of  the  charter  and  acceptance  of  it  by  the  State, 
and  of  legislative  repeal  of  the  charter,  the  acts  of  acceptance  or  repeal 
usually  make  special  provision  for  winding  up  the  affairs  of  the  com- 
pany. 

The  death  of  a  natural  person,  party  to  a  suit  in  which  a  corporation 
is  also  a  party,  has,  of  course,  just  the  same  effect  as  if  the  other  party 
were  a  natural  person. 

32  Rev.  Stats.  1895,  arts.  4555,  4556. 


PENDENCY  OF  SUIT.  453 


PENDENCY  OF  ANOTHER  SUIT  AS  GROUND  FOR  ABATE- 
MENT. 

At  common  law,  if  a  suit  were  pending  between  parties,  this  precluded 
the  same  parties  from  instituting  and  maintaining  between  themselves 
another  suit  on  the  same  cause  of  action  in  the  courts  of  the  same 
government.  This  rule  is  not  enforced  here,  and,  if  a  second  suit  is 
brought  in  a  court  deriving  its  authority  from  the  same  sovereign  as  that 
in  which  the  first  is  pending  and  a  plea  in  abatement  is  filed  because 
of  the  pendency  of  the  first,  the  court  will  compel  the  party  to  elect 
which  suit  he  will  proceed  with  and  to  dismiss  and  pay  the  costs  of  the 
other.33 

It  is  held  by  the  Court  of  Civil  Appeals  of  the  Third  District  that 
Federal  courts  in  this  State  and  the  Texas  courts  do  not  come  within 
this  rule  and  the  plea  of  pendency  of  a  suit  for  the  same  cause  of  action 
between  the  same  parties  in  a  Federal  court  is  not  good  in  the  abate- 
ment of  the  suit  in  the  State  court.34 

INSANITY  AS  GROUND  FOR  ABATEMENT. 

There  are  no  statutory  provisions  on  this  subject.  All  persons  are 
presumed  to  be  capable  of  conducting  litigation  involving  their  rights 
and  liabilities.  If  any  particular  person  be  legally  incapable,  this  fact 
must  be  made  known  to  the  court.  If  the  incompetent  has  been  adjudged 
insane  by  a  court  of  competent  jurisdiction  and  a  guardian  appointed,  all 
litigation  regarding  his  estate  should  be  conducted  by  his  guardian.  If 
suit  should  be  brought  by  or  against  the  incompetent  personally,  the  fact 
of  his  incapacity  and  its  adjudication  and  the  appointment  of  a  guardian 
should  be  suggested,  and  the  guardian  be  made  a  party.  If  the  facts 
are  shown  and  the  guardfan  will  not  come  in  as  plaintiff,  the  suit  should 
be  dismissed.  If  the  incompetent  be  a  defendant  and  the  plaintiff  will 
not  make  the  guardian  party,  the  case  should  be  dismissed. 

If  there  has  been  no  adjudication  of  insanity,  the  suggestion  of  in- 
competency  should  be  made  to  the  court.  If  it  is  perfectly  apparent,  or 
if  from  the  evidence  Tieard  by  the  court  the  judge  is  satisfied  that 
the  party  is  not  mentally  capable  of  understanding  and  appreciating  the 
case  and  of  conducting  the  litigation,  the  suit  should  be  stayed  until  the 
proper  parties  are  made.  If  the  incompetent  party  is  the  plaintiff,  the 
practice  is  not  absolutely  settled.  The  best  course  is  to  secure  letters  of 
guardianship  in  the  proper  probate  court  and  substitute  the  guardian  in 
his  official  capacity  for  the  plaintiff.  It  is  not  certain  whether  or  not  the 

33  Payne  v.  Benham,  16  Texas,  367 ;  Trawick  v.  Martin  Brown  Co.,  74  Texas, 
522,  12  S.  W.,  216. 

34  Railway  Co.  v.  Barton,  57  S.  W.,  292. 


454  ABATEMENT,    DISCONTINUANCE,   AND   DISMISSAL. 

court  could  permit  the  litigation  to  be  conducted  by  a  next  friend  or  a 
guardian  ad  litem,  though  this  would  seem  in  many  instances  admissible. 

If  the  incompetent  is  a  defendant,  the  statute  provides  for  his  repre- 
sentation by  a  guardian  ad  litem.35 

In  Texas  &  Pacific  Kailway  Company  v.  Bailey,36  decided  before  the 
amendments  were  passed  extending  community  administration  to  cases 
of  insanity  of  one  of  the  spouses,  it  was  held  that  when  the  husband 
had  brought  suit  on  a  community  demand  and  had  afterwards  become 
insane,  the  wife  could  not  continue  the  litigation  in  her  own  name. 
Whether  or  not  she  might  have  done  so  as  next  friend  of  her  husband 
was  expressly  left  undecided. 

If  either  party  becomes  insane  pending  the  litigation  and  after  active 
jurisdiction  has  been  secured  over  his  person,  if  no  suggestion  of  such 
fact  is  made  to  the  court,  and  it  proceeds  and  renders  judgment  in 
the  case,  the  judgment  so  rendered  is  not  void  but  voidable,  and  can  be 
set  aside  only  by  direct  proceedings  brought  before  the  expiration  of 
two  years  after  the  removal  of  the  disability.303- 

DISCONTINUANCE. 

Articles  1256,  125?  and  1259  must  be  considered  together  and  in  con- 
nection with  .articles  1203  and  1204.  Their  combined  effect  is  to  change 
very  radically,  if  not  to  set  aside  entirely,  the  common  law  rules  as  to 
joinder  of  parties  defendant.  The  first  clause  of  article  1203  reads  as 
follows:  "The  acceptor  of  any  bill  of  exchange  or  any  other  principal 
obligor  in  any  contract  may  be  sued  either  alone  or  jointly  with  any  other 
party  liable  thereon/''  Article  1256  permits  the  plaintiff  in  a  suit  in 
which  all  the  defendants  are  principal  obligors  to  discontinue  the  suit 
as  to  any  defendant  who  has  not  been  served,  and  to  proceed  to  judg- 
ment against  the  others.  Article  1259  gives 'the  same  rules  in  some 
cases  in  which  all  the  defendants  have  been  served.  So  that  it  is 
optional  with  the  plaintiffs  what  number  of  the  principal  obligors  on 
the  contract  on  which  the  suit  is  based  they  may  sue  in  the  first  instance. 
Our  courts  have  held,  and  properly,  that  these  statutes  do  away  with, 
so  far  as  the  parties  defendant  to  litigation  are  concerned,  the  distinction 
between  joint  and  several  obligations.37  Different  rules,  however,  prevail 
in  suits  against  principal  obligors  and  those  secondarily  liable.  Here,  be- 
fore the  party  secondarily  liable  can  be  sued  without  joinder  of  the  prin- 

85  Rev.  Stats.   1895,  art.  1211. 
30  83  Texas,  23,  18  S.  W.,  481. 

sea  Murchison  v.  White,  54  Texas,  78;  Flemming  v.  Seeligson,  57  Texas,  530; 
Brown  v.  Rentfro,  57  Texas,  330. 

37  Wooters  v.  Smith,  56  Texas,  198 ;  Keesey  v.  Old,  82  Texas,  22,  17  S.  W.,  928. 


DISCONTINUANCE.  455 

cipal,  or  can  be  compelled  to  litigate  further  after  the  discontinuance  of 
the  suit  against  the  principal  obligor,  certain  exceptional  conditions  must 
be  both  plead  and  proved.  It  must  be  shown  .that  the  principal  obligor 
lives  beyond  the  limits  of  the  State  or  in  such  part  of  the  State 
that  he  can  not  be  reached  by  ordinary  process  of  law,  or  that  his 
residence  is  unknown  and  can  not  be  ascertained  by  use  of  reasonable 
diligence,  or  that  he  is  dead,  or  is  actually  and  notoriously  insolvent.  If 
any  one  of  these  conditions  exist  as  to  one  or  more  of  the  principal 
obligors,  he  or  they  need  not  be  sued,  or  if  sued,  the  suit  may  be  dis- 
continued as  to  him  or  them  and  proceeded  with  against  the  other  prin- 
cipal obligors,  if  any,  or  against  the  party  secondarily  liable,  or  both, 
as  the  case  may  be.  It  is  therefore  important  to  know  who  are  prin- 
cipal obligors  and  who  parties  secondarily  liable  as  sureties,  etc.  The 
general,  if  not  universal  rule,  regarding  commercial  paper  of  all  kinds  is 
that,  in  the  absence  of  fraud,  the  liability  of  all  pasties  to  such  paper  is  to 
be  determined  by  the  written  instrument  read  in  the  light  of  the  ac- 
cepted rules  of  the  interpretation  of  the  law  merchant.  On  such  paper 
every  one  has  just  such  liability  to  the  payee  as  the  paper  itself  imports, 
unless  the  parties  seeking  to  enforce  the  obligation  are  guilty  of  some 
fraud  in  connection  therewith.  Oral  testimony  will  not  be  received  to 
show  that,  in  fact,  the  obligor  was  liable  to  the  payee  in  some  other 
way.  Thus,  if  one's  name  appear  on  a  note  as  principal,  he  is  not 
ordinarily  permitted,  as  against  the  payee,  to  prove  by  parol  that  he  is 
only  a  surety,  so  that  he  may  avail  himself  of  these  articles.38  These 
rules  do  not  apply  in  suits  between  the  makers  of  notes  to  adjust  their 
equities,  and  in  cases  of  that  sort  parol  evidence  may  be  received  to 
show  the  real  facts.  If  the  paper  is  not  negotiable  the  rule  is  that  the 
actual  relations  of  the  parties  may  be  shown,  unless  the  person  seeking 
to  do  so  is  estopped  by  his  previous  conduct. 


When  Discontinuance  May  be  Made. 

The  discontinuance  of  the  plaintiff's  case  may  be  made  at  any  time, 
either  before  the  call  of  the  docket,  when  the  case  is  called,,  or  during 
the  progress  of  the  trial.  It  must,  however,  be  entered  in  the  record  be- 
fore or  in  the  final  judgment,  so  that  the  record  will  show  a  conclusive 
disposition  of  the  case  as  to  all  the  parties.39  Upon  payment  of  all  costs 
which  may  have  accrued,  discontinuance  may  be  made  in  vacation.40 

33  Hitter  v.  Hamilton,  4  Texas,  325;  Lewis  v.  Riggs,  9  Texas,  165;  Ennis  v. 
Crump,  6  Texas,  85;  Head  v.  Cleburne  B.  and  L.  Assn.,  25  S.  W.,  810. 

39  Martin  v.  Crow,  28  Texas,  614;  Rodriguez  v.  Trevino,  54  Texas,  198;  Whitaker 
v.  Gee,  61  Texas,  217;  Railway  Co.  v.  Scott,  78  Texas,  360,  14  S.  W.,  791. 

40  Rev.  Stats.  1895,  art.  1258. 


456  ABATEMENT,   DISCONTINUANCE,   AND   DISMISSAL. 

The  plaintiff  can  discontinue  only  his  own  case,  not  the  defendant's ;  so, 
if  a  cross-action  ha&  been  filed,  he  has  no  control  over  that,  and  can  be 
compelled  to  remain  in  cpurt  and  litigate  the  issues  properly  tendered 
in  such  action.41  The  cost  of  bringing  in  the  party  as  to  whom  the 
discontinuance  is  entered  is  on  the  plaintiff.  The  effect  of  a  discontinu- 
ance is  to  terminate  that  suit  between  the  parties.  It  is  not  a  filial 
disposition  of  the  case  on  its  merits,  and  does  not  prevent  the  bringing 
of  another  suit  between  the  parties  on  the  same  cause  of  action. 

41  Rev.  Stats.  1895,  arts.  1260,  1301. 


APPENDIX. 


EULES  FOR  THE  COURTS  OF  TEXAS. 


ADOPTED  BY  ORDER  OF  THE  SUPREME  COURT,  OCTOBER  8,  1892,  AS 

AMENDED  BY  ORDER  OF  THE  SUPREME  COURT,  JUNE  29, 

1895,  AMENDED  NOVEMBER  8,  1897,  DECEMBER 

22,  1898,  AND   FEBRUARY  7,  1901. 


NOW  IN  FORCE,  FEBRUARY  7,  1901. 


EULES  FOR  THE  SUPREME  COURT. 

1.  Applications  for  writs  of  error  shall  consist  of  a  petition  ad- 
dressed to  this  court,  embracing  specific  assignments  of  error  con- 
fined to  the  points  of  law  presented  in  the  motion  for  rehearing  in  the 
Court  of  Civil  Appeals;  of  the  original  papers  containing  the  conclusions 
of  law  and  fact  and  of  the  latter  court  (including  their  statement  of  the 
case  and  opinion)  and  of  the  original  motion  for  a  rehearing,  all  of 
which  original  papers,  as  well  as  the  transcript  of  the  proceedings  in  the 
trial  court,  and  a  transcript  of  the  orders  and  judgment  of  the  Court 
of  Civil  Appeals,  and  the  briefs  filed  therein,  shall,  accompany  the 
petition.  A  motion  for  a  rehearing  must  be  made  in  the  Court  of  Civil 
Appeals  and  overruled  before  applying 'for  a  writ  of  error.  The  peti- 
tion for  the"  writ  shall  be  as  brief  as  practicable,  and  need  only  contain 
the  requisites  prescribed  by  the  statute.  The  statement  of  the  case  by 
the  Court  of  Civil  Appeals,  their  conclusions  of  fact  and  law,  and  their 
opinion  will  be  deemed  a  part  of  the  petition  without  being  referred 
to  therein,  and  if  it  appear  therefrom  that  the  case  belongs  to  the  class 
over  which  as  a  general  rule  the  jurisdiction  of  the  Court  of  Civil 
Appeals  is  not  made  final  by  the  statute,  and  that  the  judgment  has  been 
affirmed,  the  facts  to  show  jurisdiction  in  this  court  need  not  be  alleged, 
but  if  it  appear  therefrom  that  the  case  belongs  to  either  of  the  classes 
over  which  as  a  general  rule  the  Courts  of  Civil  Appeals  have  final 
jurisdiction,  or  that  the  judgment  has  been  reversed  with  an  order 
remanding  the  case,  then  the  petition  must  contain  averements  showing 
that  the  case  comes  within  some  one  of  the  exceptions  contained  in  the 
statutes,  so  as  to  make  the  jurisdiction  of  this  court  apparent.  The  opin- 
ion together  with  the  statement  of  the  case  and  the  conclusions  of  the 


458  APPENDIX. 

Court  of  Civil  Appeals  will  be  read  by  the  court  in  connection  with 
the  application,  so  that  no  matter  will  be  stated  in  the  petition  which 
appears  in  such  statements,  conclusions  and  opinion.  If  in  the  opinion 
of  counsel  the  statement  of  the  case  as  made  by  the  Court  of  Civil 
Appeals  is  sufficiently  full  and  accurate  to  present  properly  the  questions 
to  be  determined  by  the  court,  no  additional  statement  should  be  made 
under  any  assignment;  but  if  not,  then  under  each  assignment  counsel 
will  make  a  statement,  pointing  out  the  alleged  omissions,  inaccuracies 
or  errors  in  the  court's  statement  and  conclusions  of  fact  so  far  as  may 
be  deemed  necessary  to  properly  present  the  question  raised  by  such 
assignment,  and  will  support  it  by  reference  to  the  transcript  of  the 
proceedings  in  the  trial  court.  The  reference  shall  cite  the  particular 
part  or  parts  of  the  transcript  relied  upon,  noting  the  page  and  line, 
both  of  the  beginning  and  of  the  ending  of  the  matters  referred  to. 
Each  assignment  and  statement,  if  there  be  any,  may  be  followed  by 
such  argument  and  citation  of  authority  as  counsel  see  proper  to  pre- 
sent. 

2.  The  clerk  of  this  court  shall  receive  all  applications  for  writs  of 
error,  and  file  the  petition  and  accompanying  transcript  from  the  Court 
of  Civil  Appeals,  and  enter  the  case  upon  the  docket  kept  for  that  pur- 
pose, known  as  the  application  docket.    But  he  shall  not  be  required  to 
take  the  same  from  the  postoffice  or  an  express  office  unless  the  post- 
age or  express  charges,  as  the  case  may  be,  shall  have  been  fully  paid. 
The  cases  shall  be  numbered  consecutively  on  the  application  docket 
and  the  number  shall  be  placed  upon  the  application. 

3.  The  application,  when  filed  in  accordance  with  law,  shall  be 
deemed  submitted  to  the  court  and  ready  for  disposition,  unless  the  ap- 
plicant shall  file  with  his  petition  a  request  for  time  in  which  to  present 
a  brief  written  argument,  in  which  case  a  period  of  time  not  exceeding 
ten  days  may  be  allowed  him  for  that  purpose.    The  applicant  should  he 
so  select,  may  cite  his  authorities  in  his  petition  or  may  file  a  separate 
brief  or  argument. 

4.  Upon  a  refusal  by  this  court  of  an  application  for  a  writ  of  error, 
the  clerk  of  this  court  shall  transmit  with  the  least  practicable  delay 
to  the  clerk  of  the  Court  of  Civil  Appeals  to  which  the  writ  of  error 
was  sought  to  be  sued  out,  a  certified  copy  of  the  order  of  this  court 
denying  such  application;  and  shall  return  all  the  file  papers  of  that 
court  to  the  clerk  thereof,  but  shall  not  return  the  petition  for  the 
writ  or  error. 

5.  If  the  application  be  granted,  the  clerk  shall  issue  a  writ  of  error 
to  the  judges  of  the  court,  the  judgment  of  which  is  sought  to  be 
revised,  advising  them  that  the  writ  of  error  has  been  granted,  and  the 
clerk  shall  also  issue  a  citation  to  the  defendant  or  defendants  in 
error,  or  to  his  or  their  attorneys  of  record,  notifying  him  or  them 
that  the  writ  of  error  has  been  granted  and  of  the  date  thereof,  and  to 
appear  and  defend  the  same.     Said  citation  shall  be  returnable  in  ten 
days,  and  in  the  event  it  be  not  served,  the  clerk  shall  issue  other  suc- 
cessive citations  until  due  service  is  had.    Service  of  the  citation  upon 
one  attorney  will  be  deemed  service  on  all  parties  represented  by  him. 


RULES    FOR   THE    SUPREME    COURT.  459 

If  no  bond  be  required  the  citation  and  writ  of  error  shall  issue  im- 
mediately upon  the  granting  of  the  application.  If  a  bond  be  required 
the  writ  shall  issue  upon  receipt  of  the  duly  certified  copy  of  the  bond 
prescribed  by  the  statute.  Unless  further  time  be  allowed  by  special 
order  of  the  court  in  the  particular  case  the  certified  copy  must  be 
filed  in  this  court  within  ten  days  from  the  granting  of  the  application. 
If  the  copy  be  not  so  filed,  the  application  will  be  dismissed  by  the  court 
of  its  own  motion. 

5a.  Whenever  in  any  case  in  which  a  writ  of  error  has  been  granted  or 
in  which  such  writ  may  hereafter  be  allowed,  it  shall  be  made  to  appear 
to  the  clerk  of  this  court  by  the  affidavit  of  a  plaintiff  in  error,  his  ageni 
or  attorney,  that  the  defendant  in  error  has  no  attorney  of  record  and 
either  that  he  is  beyond  the  limits  of  the  State  or  that  his  residence  is  un- 
known, so  that  it  js  impracticable  to  serve  citation  upon  him  in  the  ordi- 
nary method  provided  by  law,  it  shall  be  the  duty  of  the  clerk  of  this 
court  upon  the  plaintiff  in  error  making  provision  for  the  payment  of 
the  expense  thereof,  to  cause  notice  of  the  granting  of  the  writ  to  be  pub- 
lished once  each  week  for  four  successive  weeks  in  some  newspaper  pub- 
lished in  the  county  in  which  the  case  was  tried;  or  a  notice  of  the 
granting  of  the  writ  may  be  issued  by  the  clerk  of  this  court  and  may  be 
served  upon  the  defendant  in  error  and  returned  in  the  manner  pro- 
vided in  articles  1230,  1232  and  1233  of  the  Eevised  Statutes,  except 
no  copy  of  the  petition  for  the  writ  of  error  need  be  served.  Notice 
given  in  either  of  the  two  modes  herein  provided  shall  have  the  same 
effect  as  service  of  citation,  as  provided  in  rule  5;  and  the  publication 
or  service  of  notice  may  be  proved  by  the  affidavit  of  any  person,  de- 
posited with  the  clerk  and  filed  among  the  papers  in  the  cause. 

6.  When  service  of  the  citation  in  error  shall  have  been  had,  it  shall 
be  the  duty  of  the  clerk  to  put  the  case  upon  the  trial  docket  and  to 
mark  upon  the  file  the  number  of  the  case  as  shown  upon  such  docket. 
Cases  upon  the  trial  docket  shall  be  numbered  consecutively  in  the  order 
in  which  they  are  entered  thereon. 

7.  Causes  in  this  court  will  be  regularly  submitted  on  Thursday  of 
each  week,  though  a  case  may  be  set  down  for  submission  upon  another 
day  by  the  permission  or  direction  of  the  court. 

8.  A  case  shall  stand  for  submission  upon  the  first  regular  day  of  the 
submission  of  causes  coming  after  the  expiration  of  twenty  days  from 
the  day  on  which  the  writ  of  error  shall  have  issued;  provided,  the  cita- 
tion in  error  shall  have  been  served  ten  days  before  such  submission 
day.    If  not  so  served  then  the  ease  shall  be  subject  to  submission  on  the 
firs.t  regular  submission  day  which  falls  ten  days  after  service  of  the 
citation. 

9.  Motions  in  a  case  not  submitted  will  be  heard  on  the  day  next 
preceding  the  submission  day  for  such  case  and  the  adverse  party  will 
be  required  to  take  notice  of  all  motions  filed  in  the  cause  on  or  before 
the  Tuesday  immediately  preceding  such  submission  day.     Notice  shall 
be  given  of  all  motions  filed  after  that  time. 

10.  The  clerk  shall  keep  a  motion  docket  upon  which  shall  be  entered 
every  motion  as  soon  as  filed.    The  motions  shall  be  numbered  consecu- 


460  APPENDIX. 

tively  upon  the  docket  and  its  number  shall  be  placed  upon  the  motion 
itself. 

11.  A  party  who  elects  to  file  in  this  court  a  brief  in  addition  to  the 
brief  filed  in  the  Court  of  Civil  Appeals,  shall  comply  as  near  as  may  bo 
with  the  rules  prescribed  for  briefing  causes  in  the  latter  court,  and  shall 
confine  his  brief  to  the  points  raised  in  the  motion  for  a  rehearing  and 
presented  in  the  application  for  a  writ  of  error. 

12.  When  any  Court  of  Civil  Appeals  shall  certify  to  this  court  any 
question  for  determination,  or  shall  send  to  this  court  any  cause  upon, 
a  certificate  of  dissent,  either  upon  its  own  motion  or  that  of  any 
party,  the  certificate,  in  either  case,  shall  be  accompanied  by  the  briefs 
filed  in  the  Court  of  Civil  Appeals;  and  the  clerk  of  this  court  shall,  upon 
the  receipt  of  the  briefs,  issue  notices  to  the  attorneys  whose  names  ap- 
pear thereon  of  the  day  on  which  the  question  or  cause,  as  the  case  may 
be,  shall  be  set  down  for  submission. 

13.  The  rules  prescribed  for  the  Courts  of  Civil  Appeals  as  to  the 
custody  of  transcripts,  the  argument  of  causes  and  as  to  the  notices  to 
attorneys  of  the  disposition  of  cases,  shall  govern  in  this  court. 

14.  When  a  certified  question  from  a  Court  of  Civil  Appeals  is 
presented  to  the  clerk  of  this  court,  he  will  file  and  docket  it  and  send . 
it  at  once  to  the  consultation  room.     If  the  court  should  determine 
that  the  question  is  not  properly  certified  under  the  statute,  so  as 
to  give  juridiction  to  answer  it,  it  will  be  dismissed  without  a  hear- 
ing.   Otherwise  it  will  be  set  down  for  argument  on  a  day  to  be  fixed, 
by  the  court  in  regular  session. 

15.  Parties  desiring  a  writ  of  mandamus  from  this  court  are  re- 
quired to  cause  the  petition  therefor  to  be  presented  to  the  clerk  of 
the  court,  accompanied  with  a  motion  that  the  same  be  filed  a~nd  set 
down  for  a  hearing,  and  also  accompanied  with  such  written  argument 
in  behalf  of  the  motion  as  may  be  desired.    The  motion  will  be  filed, 
and,  together  with  the  petition  and  argument,  if  any,  will  be  sent 
at  once  to  the  consultation  room  for  the  action  of  the  court.     If  the 
court  should  be  clearly  of  opinion  that  upon  the  facts  stated  in  the 
petition  the  writ  should  not  be  awarded,  the  motion  will  be  denied 
by  an  order  made  in  open  court  and  entered  upon  the  minutes.    Should 
the  court  not  be  of  that  opinion,  an  order  will  be  passed  and  entered, 
requiring  the  petition  to  be  filed  and  fixing  a  day  for  the  hearing  of 
the  cause. 

The  relator  shall  also  file  with  his  motion,  a  bond  with  two  or  more 
good  and  sufficient  sureties,  to  be  approved  by  the  clerk  of  this  court, 
in  the  sum  of  fifty  dollars ;  or,  in  case  he  be  unable  to  pay  the  costs,  or 
give  security  therefor,  an  affidavit  in  lieu  of  such  bond.  Such  bond  shall 
be  conditioned,  or  in  case  of  an  affidavit,  the  affidavit  shall  be  such  as  is 
.  required  by  the  statutes  for  cost  bonds  or  affidavit  in  lieu  thereof  in  suits 
in  the  district  court. 


RULES   FOR   THE    COURTS   OF    CIVIL   APPEALS.  461 

RULES  FOR  THE  COURTS  OF  CIVIL  APPEALS. 

TRANSCRIPTS. 

1.  The  clerks  of  the  Courts  of  Civil  Appeals  shall  receive  the  trans- 
cripts delivered  and  sent  to  them,  and  receipt  for  the  same  if  required, 
but  they  shall  not  be  required  to  take  a  transcript  out  of  the  postoffico. 
or  an  express  office,  unless  the  postage  or  charges  thereon  be  fully  paid. 
Upon  receipt  of  the  transcript  it  shall  be  the  duty  of  the  clerk  to  exam- 
ine it  in  order  to  ascertain  whether  or  not,  in  case  of  an  appeal,  notice  of 
appeal  and  a  proper  appeal  bond  or  affidavit  in  lieu  thereof  (where  bond 
is  required)  have  been  given;  and  in  case  of  a  writ  of  error,  whether  or 
not  the  citation  in  error  appears  to  have  been  duly  served,  and  error  bond 
or  affidavit  in  lieu  thereof  (where  such  bond  is  required)  appears  to  have 
been  filed.    If  it  seems  to  him  that  the  appeal  or  writ  of  error  has  not 
been  duly  perfected  he  shall  note  on  the  transcript  the  day  of  its  recep- 
tion and  refer  the  matter  to  the  court.     If,  upon  such  reference,  the 
court  shall  be  of  opinion  that  the  transcript  shows  that  the  appeal  or  writ 
of  error  has  been  duly  perfected,  they  shall  order  the  transcript  to  be 
filed  as  of  the  date  of  its  reception.     If  not,  they  shall  cause  notice 
of  the  defect  to  issue  to  the  attorneys  of  record  of  the  appellant  or  plain- 
tiff in  error,  as  the  case  may  be,  to  the  end  that  they  may  take  steps  to 
amend  the  record,  if  it  can  be  done,  for  doing  which  a  reasonable  time 
shall  be  allowed.    If  the  transcript  do  not  show  the  jurisdiction  of  the 
court,  and  if  after  notice  it  be  not  amended,  the  case  shall  be  dis- 
missed. 

2.  The  clerk  shall  indorse  his  filing  upon  the  transcript,  of  the 
date  of  its  reception,  if  it  comes  to  his  hands  properly  indorsed,  showing 
who  applied  for  it,  and  to  whom  it  was  delivered,  if  presented  within 
ninety  days  from  the  time  the  appeal  or  writ  of  error  is  perfected.    But 
if  it  comes  to  his  hands  after  the  said  date,  or  not  so  properly  indorsed, 
he  shall,  without  filing  it,  make  a  memorandum  upon  it  of  the  date  of 
its  reception,  and  keep  it  in  his  office,  subject  to  the  order  of  the  person 
who  sent  it,  or  to  the  disposition  of  the  court.    Said  transcript  shall  not 
be  filed  until  a  satisfactory  showing  has  been  made  to  the  court  for  its 
not.  being  properly  indorsed,  or  for  not  being  received  by  the  clerk 
in  proper  time ;  and  upon  this  being  done,  it  may  be  ordered  by  the  court 
to  be  filed,  upon  such  terms  as  may  be  deemed  proper,  having  respect  to 
the  rights  of  the  opposite  party. 

3.  Either  party  may  file  the  transcript  for  which  he  has  applied  to 
the  district  clerk,  and  which  has  been  delivered  to  him;  both  of  which 
facts  must  appear  on  the  transcript  by  the   indorsement  of  the  dis- 
trict clerk.     If  the  indorsement  shows  tlyit  it  was  applied  for  by  one 
party  and  delivered  to  the  other,  it  must  be  shown  by  the  indorsement 
of  the  clerk,   or  otherwise,  to   entitle  it  to   be  properly  •  filed   as   the 
transcript  of  the  party  to  whom  it  was  delivered,  and  that  it  was  deliv- 
ered to  one  by  the  consent  of  the  other,  as  each  party  has  the  sole  right 
to  the  transcript  which  he  applied  for  to  be  made  out  for  him ;  and  if  it  is 


462  APPENDIX. 

so  filed,  without  that  fact  being  shown,  the  court  may  strike  the  case 
from  the  docket  as  improperly  filed,  upon  its  own  inspection,  or  upon 
the  motion  of  the  party  to  whom  the  transcript  belonged. 

4.  If  both  parties  file  transcripts  within  the  proper  time — which 
they  may  do — and  that  of  the  appellant  or  plaintiff  in  error  is  properly 
made  and  indorsed,  it  shall  be  regarded  by  the  court  as  the  transcript 
of  the  record  in  the  case,  and  the  court  will  grant  the  appellee  or  defend- 
ant in  error  leave  to  withdraw  th^t  filed  by  him  for  his  own1  use. 

5.  If  but  one  party  file  his  transcript  in  proper  time,  that  shall  be 
regarded  as  the  transcript  of  the  record  in  the  case. 

6.  From  the  time  when  the  transcript,  properly  made  out  and  in- 
dorsed, is  filed,  it  will  cease  to  belong  to  either  partv,  but  will  become 
a  record  of  the  court,  subject  to  its  control  and  disposition. 

7.  Transcripts  in   appeals  from  judgments   in  proceedings  in   quo 
warranlo  shall  be  filed  in  the  Court  of  Civil  Appeals  within  twenty  days 
after  appeal  is  perfected,  and  the  first  Tuesday  following  such  twentieth 
day  shall  be  the  day  for  filing  motions  in  such  cases. 

7a.  If  the  transcript  when  filed  in  the  Court  of  Civil  Appeals  shall 
not  be  indexed,  as  required  by  rule  92  of  the  rules  for  the  government  of 
the  district  courts,  the  Court  of  Civil  Appeals  may  cause  a  proper  index 
to  be  made  by  the  clerk  of  their  court,  and  shall  cause  the  costs  of  the 
same  to  be  taxed  against  the  plaintiff  in  error  or  appellant,  as  the  case 
may  be. 

MOTIONS. 

8.  All  motions  relating  to  informalities  in  the  manner  of  bringing 
a  case  into  court,  shall  be  filed  and  entered  by  the  clerk  on  the  motion 
docket  at  least  forty-eight  hours  before   10  o'clock  a.  m.  of  ;the  day 
on  which  "the  cause  is  set  for-  a  hearing,"  under  section  23  of  the  act 
entitled  "An  act  to  organize  the  Courts  of  Civil  Appeals,  to  define  their 
jurisdiction  and  powers,  and  to  prescribe  the  mode  of  procedure  therein/'' 
approved  April  13,  1892;  otherwise  the  objection  shall  be  considered  as 
waived  if  it  can  be  waived  by  the  party ;  such  filing  and  docketing  will  be 
sufficient  notice  of  the  motion. 

9.  Motions  to  dismiss  for  want  of  jurisdiction  to  try  the  case,  and  for 
such   defects   as   defeat   the   jurisdiction   in   the   particular   case,    and 
can  not  be  waived,  shall  also  be  made,  filed  and  docketed  at  said  time, 
which  filing  and  docketing  shall  be  notice  of  the  motion;  provided,  how- 
ever, if  made  afterwards,  they  may  be  entertained  by  the  court,  after 
such  notice  to  the  opposite  party  as  the  court  may  deem  proper  to  have 
been  given  under  the  circumstances. 

10.  Motions,  made  either  to  sustain  or  defeat  the  jurisdiction  of  the 
court,  dependent  on  facts  not  apparent  in  the  record  and  not  ex  officio 
known  to  the  court,  must  be  supported  by  affidavits  or  other  satisfactory 
evidence 

11.  Motions  for  certiorari  to  perfect  the  record  shall  also  be, made 
in  the  time  required  in  rule  8.    They  must  be  accompanied  with  a  sworn 
statement  showing  a  necessity  for  the  same,  unless  the  record  shows  it, 


RULES    FOR   THE    COURTS   OF    CIVIL   APPEALS.  463 

the  filing  and  docketing  of  which  shall  be  notice  of  the  same.  If  made 
afterwards,  they  will  be  entertained  only  upon  such  terms  and  upon 
such  notice  as  the  court  may  deem  proper.  Unless  reason  appear  to 
vary  the  rule,  the  party  applying,  in  all  cases,  will  be  taxed  with  the 
costs. 

12.  Motions  made  to  postpone  the  case  to  a  future  day,  <fr  to  continue 
it  until  the  next  term,  unless  consented  to  by  the  opposite  party,  shall 
be  supported  by  sufficient  cause,  verified  by  affidavit,  unless  such  suffi- 
cient cause  is  apparent  to  the  court. 

13.  The  motion  docket  shall  be  called  on  the  day  of  each  week  next 
before  the  day  set  apart  for  the  submission  of  causes,  when  the  motions 
filed  and  docketed  according  to  the  preceding  rules  will  be  in  order 
for  submission  at  the  instance  of  either  party;  and  if  not  submitted  then, 
may  be  submitted  at  the  regular  call  of  the  trial  docket,  unless  sooner 
called  up  and  disposed  of. 

14.  The  arguments  of  counsel  upon  all  motions  shall  be  confined  to 
a  brief  explanation  of  the  grounds  in  the  motion,  so  as  to  make  them 
intelligible  to  the  court,  with  a  reference  to  the  statutes  and  decisions 
relating  thereto,  unless  further  argument  is  requested  by  the  court. 

15.  The  clerk,  upon  filing  and  docketing  a  motion,  will  indorse  upon 
the  motion  its  number  and  the  number  of  the  case  to  which  it  belongs, 
which  shall  also  be  entered  in  the  motion  docket,  together  with  the  at- 
torney's name  who  makes  the  motion.     Any  opposition  in  the  way  of 
answer  to  said  motion  by  the  opposite  party  may  be  filed,  and  in  like  man- 
ner indorsed  and  noted  in  the  motion  docket,  and  the  name  of  the  at- 
torney therein  entered. 

THE   DOCKET. 

16.  The  clerk,  before  the  regular  call  of  the  trial  docket,  shall  have 
the  file  number  indorsed  on  each  transcript.     Where  briefs  have  been 
filed  in  a  case,  the  name  of  the  attorney  or  attorneys  signed  to  the  brief 
shall  be  entered  by  the  clerk  on  the  trial  docket,  opposite  the  name  of  the 
appropriate  party,  and  that  shall  indicate  to  the  court  who  appears  for 
such  party  in  the  cause. 

17.  The  clerk  shall  not  make  such  entry  of  an  attorney's  name  until 
he  shall  have  filed  his  briefs;  but  he  shall  permit  any  attorney  who  de- 
sires to  make  an  appearance  in  the  case  before  he  files  his  briefs,  or  with- 
out filing  them  at  all,  to  place  his  name,  in  his  own  handwriting,  upon 
the  trial  docket,  opposite  the  name  of  the  party  for  whom  he  appears, 
and  that  shall  be  regarded  by  the  court  as  having  whatever  effect  is  given 
to  the  mere  appearance  of  a  party  to  a  case  in  court  without  brief  filed. 

18.  The  court  will  not  enter  upon  the  docket  the  names  of  attorneys 
in  a  case,  but  counsel  desiring  their  names  entered  shall  see  that  it  is  done 
under  the  foregoing  rule  before  the  case  is  called. 

19.  Counsel  desiring  to  call  attention  of  the  court  to  a  case  on  the 
motion  docket  or  trial  docket,  not  then  called  in  its  regular  order,  must, 
before  doing  so,  provide  himself  with  the  number  of  the  case  on  the 
docket. 


464  APPENDIX. 

CALLING  THE  DOCKET. 

» 

20.  The  trial  docket  will  be  called  in  regular  order,  according  to  the 
filing  of  the  cases  as  they  stand  thereon,  commencing  with  the  first  of 
those  that  have  not  been  previously  submitted,  but  the  court  shall  not 
be  required  to  take  the  submission  of  a  case  until  the  business  on  hand 
will  admit  of  a  prompt  disposition  after  the  submission  has  been  taken. 

21.  Upon  the  call  of  the  trial  docket  for  the  submission  of  cases, 
either  party  may  submit  a  cause  if  it  appears  to  have  been  properly 
prepared  for  submission  on  his  part,  unless,  for  good  cause,  the  court 
shall  postpone  the  hearing  to  a  further  day,  or  by  agreement  of  counsel 
to  a  future  day  of  the  term,  which  will  not  be  done  so  as  to  interfere 
with  the  business  of  the  court.    This  rule  is  subject  to  exceptional  cases 
given  a  preference  to  under  some  law  or  rule  of  the  court,  and  to  the 
action  of  the  court  on  motions  for  the  postponement  and  continuance 
of  causes. 

PREPARING    A    CAUSE    FOR    SUBMISSION. 

22.  A  cause  will  be  properly  prepared  for  submission  only  when  a 
transcript  of  the  record  exhibits  a  cause  prepared  for  appeal  in  accord- 
ance with  the  rules  prescribed  for  the  government  of  the  district  and 
county  courts,  and  filed  in  the  court  under  the  rules,  with  briefs  of  one 
or  both  the  parties,  in  accordance  with  the  rules  for  the  government  of 
the  court. 

23.  Said  record  should  contain  an  assignment  of  errors  as  required 
by  the  statute.    If  it  does  not  the  court  will  not  consider  any  error  but 
one  of  law  that  may  be  apparent  upon  the  record,  if  the  judgment  is  one 
that  could  legally  have  been  rendered  in  the  lower  court  and  affirmed  in 
the  appellate  court. 

24.  The  assignment  of  errors  must  distinctly  specify  the  grounds  of 
error  relied  on,  and  a  ground  of  error  not  distinctly  specified,  in  refer- 
ence to  that  which  is  shown  in  the  record,  or  not  specified  at  all,  shall 
be  considered  as  waived,  unless  it  be  so  fundamental  as  that  the  court 
would  act  upon  it  without  an  assignment  of  errors,  as  mentioned  in 
rule  23. 

25.  To  be  a  distinct  specification  of  error,  it  must  point  out  that 
part  of  the  proceedings  contained  in  the  record  in  which  the  error  is 
complained  of,  in  a  particular  manner,  so  as  to  identify  it,  whether  it 
be  the  rulings  of  the  court  upon  a  motion,  or  upon  any  particular  part 
of  the  pleadings,  or  upon  the  admission  or  the  rejection  of  evidence,  or 
upon  any  other  matter  relating  to  the  cause  or  its  trial,  or  the  portion  of 
the  charge  given  or  refused,  the  fact  or  facts  in  issue  which  the  evidence 
was  incompetent  or  insufficient  to  prove,  the  insufficiency  of  the  verdict 
or  finding  of  the  jury,  if  special,  and  the  particular  matter  in  which  the 
judgment  is  erroneus  or  illegal,  with  such  reasonable  certainty  as  may 
be  practicable,  in  a  succinct  and  clear  statement,  considering  the  matter 
referred  to. 

26.  Assignments  of  error  which  are  expressed  only  in  such  general 


RULES  FOR  THE  COURTS  OF  CIVIL  APPEALS.          465 

terms  as  that  the  court  erred  in  its  rulings  upon  the  pleadings,  when 
there  are  more  than  one,  or  in  its  charge,  when  there  are  a  number  of 
charges,  or  the  verdict  is  contrary  to  law,  or  to  the  charge  of  the  court, 
and  the  like,  without  referring  to  and  identifying  the  proceeding,  will 
not  be  regarded  by  the  court  as  a  compliance  with  the  statute  requiring 
the  grounds  to  be  distinctly  specified,  and  will  be  considered  as  a  waiver 
of  errors,  the  same  as  if  no  assignment  of  errors  had  been  attempted 
to  be  filed. 

27.  In  cases  submitted  to  the  judge  upon  the  law  and  facts,  the 
assignments  of  error  shall  be  governed  by  the  same  rules  as  in  other 
cases,  and  the  party  desiring  to  appeal  should,  as  a  predicate  for  specific 
assignments  of  error,  request  the  judge  to  state  in  writing  the  conclusions 
of  fact  found  by  him  separately  from  the  conclusions  of  law.     And  in 
agreed  cases  under  the  statute  the  foregoing  rules  as  to  assignments  of 
error  shall  be  complied  with  as  far  as  practicable. 

28.  There  will  be  no  assignments  of  error  allowed  in  the  appellate 
court  when  none  has  been  filed  in  the  lower  court,  unless  by  consent  of 
parties. 

•BRIEFS. 

29.  The  appellant,  or  plaintiff  in  error,  in  order  to  prepare  properly 
a  case  for  submission  when  called,  shall  have  filed  a  brief  of  the  points 
relied  on  in  accordance  with  and  confined  to  the  distinct  specifications 
of  error  (which  assignments  shall  be  copied  in  the  brief)  and  to  such 
fundamental  errors  of  law  as  are  apparent  upon  the  record,  each  ground 
of  error  being  separately  pesented  under  the  proper  assignment;  and  each 
assignment  not  so  copied  and  accompanied  with  its  appropriate  proposi- 
tions and  statements,  shall  be  regarded  as  abandoned.    The  assignments 
as  presented  in  the  brief  shall  be  numbered  from  the  first  to  the  last 
in  their  consecutive  order;  but  it  is  not  required  that  they  shall  be  pre- 
sented in  the  order  in  which  they  appear  in  the  original  assignment  of 
errors  filed  in  the  office  of  the  clerk  of  the  trial  court,  and  the  numbers 
in  such  original  assignments  may  be  disregarded. 

30.  The  appellant  or  plaintiff  in  error  in  preparing  his  brief  shall 
make  a  preliminary  statement  in  general  terms  of  the  nature  and  result 
of  the  suit,  such,  for  example,  as  the  following:     "This  was  an  action 
of  trespass  to  try  title,  which  was  brought  by  the  appellant  against  the 
appellee  and  in  which  judgment  was  rendered  for  the  defendant."    This 
may,  at  the  option  of  counsel  for  the  appellant  or  plaintiff  in  error,  be 
followed  by  a  brief  statement  of  the  case  and  such  other  matters  as  may 
be  deemed  proper  as  an  introduction  to  the  assignments  of  error.    Then 
shall  follow  the  assignments.    Each  point  under  each  assignment  shall  be 
stated   as  a  proposition  unless  the  assignment  itself  may  sufficiently 
disclose  the  point,  in  which  event  it  shall  be  sufficient  to  copy  the  as- 
signment. 

31.  To  each  of  said  propositions  there  shall  be  subjoined  a  brief 
statement,  in  substance,  of  such  proceedings,  or  part  thereof,  contained 
in  the  record,  as  will  be  necessary  and  sufficient  to  explain  and  support 

30 — Pleading 


466  APPENDIX. 

the  proposition,  with  a  reference  to  the  pages  of  the  record.  This  state- 
ment must  be  made  faithfully,  in  reference  to  the  whole  of  that  which  is 
in  the  record  having  a  bearing  upon  said  proposition,  upon  the  profes- 
sional responsibility  of  the  counsel  who  makes  it,  and  without  intermix- 
ing with  it  arguments,  reasons,  conclusions,  or  inferences.  But  an  argu- 
ment bearing  only  on  the  propositions  submitted  may  follow  each  state- 
ment. But  it  shall  be  neither  necessary  nor  proper  to  repeat  in  such 
statements  what  has  already  been  presented  in  the  general  preliminary 
statement  required  by  the  preceding  rule.  It  shall  be  sufficient  in  such 
case  to  refer  to  such  preliminary  statement  by  the  page  or  pages  of  the 
brief  on  which  the  particular  matter  is  found. 

32.  The  propositions,  if  more  than  one  under  one  ground  of  the  as- 
signment, shall  refer  to  it,  and  be  stated  separately. 

33.  In  a  proposition  relating  to  the  error  of  the  court  in  overruling 
a  motion  for  a  new  trial  or  to  arrest  the  judgment,  in  which  there  aro 
several  grounds,  the  particular  ground  or  grounds  should  be  referred 
to  with  the  appropriate  explanation;  and  if  the  same  grounds  of  error 
have  been  presented  in  other  propositions,  it  will  be  unnecessary  to 
repeat  them. 

34.  In  propositions  relating  to  fundamental  errors  of  law  apparent 
upon  the  record,  enough  must  be  stated  to  make  the  error  of  law  which 
pervades  the  case  obviously  apparent,  without  requiring  the  court  to 
search  through  the  record  to  find  errors,  which  they  will  not  do  unless 
properly  pointed  out,  if  the  judgment  is  one  which  the  trial  court  is  com- 
petent to  render  in  such  a  case. 

35.  When  the  assignments  of  error  are  numerous,  counsel  should  pre- 
sent propositions  on  those  which  are  most  important  in  the  determina- 
tion of  the  case,  waiving  those  that  can  not  control  the  result  of  the 
decision  in  this  court — amongst  which  may  be  classed  those  involving 
questions  of  fact,  wherein  the  evidence  is  so  preponderating,  or  so  con- 
flicting, as  that  the  court,  under  well-established  rules  of  decision,  would 
not  set  aside  the  verdict  of  the  jury  or  judgment  of  the  court  upon 
them. 

36.  There  should  be  annexed  to  each  proposition,  with  its  statement, 
and  at  the  end  of  it,  a  reference  simply  to  the  authorities  relied  on,  if 
any,  in  support  of  it,  in  the  following  order,  to  wit :     The  statutes  and 
decisions  of  this  State;  the  statutes  and  decisions  of  the  United  States, 
if  they  are  applicable  to  the  case;  elementary  authorities;  other  decisions 
in  the  American  and  English  courts.     In  citing  decisions,  those  most 
nearly  in  point  should  be  cited  first,  and  they  should  not,  usually  at 
least,  be  so  numerous  as  to  require  a  waste  of  time  in  their  examina- 
tion. 

37.  The  brief  of  the  parties,  framed  in  accordance  with  these  rules, 
must  be  signed  by  the  party  or  his  counsel;  and  if  by  counsel,  it  shall 
appear  for  and  on  behalf  of  what  party  or  parties,  by  name,  it  is  signed; 
and  the  copies  thereof  filed  in  the  appellate  court  shall  be  plainly  written 
or  printed,  and  if  it  covers  more  than  eight  pages  of  foolscap,  they  shall 
be  printed. 

38.  Such  brief  may  be  amended  by  a  citation  of  additional  authori- 


RULES   FOR   THE    COURTS   OF   CIVIL  APPEALS.  467 

ties  to  the  respective  points  or  propositions  made  in  it,  which  must 
be  filed  and  notice  of  it  given  to  the  counsel  for  the  opposite  party,  if  in 
attendance,  one  day  before  the  case  is  called.  No  other  amendment  to 
the  brief  shall  be  allowed  by  the  court,  unless  it  is  or  can  be  done  without 
injustice  or  unreasonable  inconvenience  being  thereby  imposed  on  the 
other  party. 

39.  The  failure  of  appellant  or  plaintiff  in  error  to  file  an  assignment 
of  errors  and  briefs  in  the  lower  court,  and  in  the  appellate  court  in  the 
time  and  in  the  manner  prescribed  by  law  and  by  the  rules,  shall  be 
ground  for  dismissing  the  appeal  or  writ  of  error  for  want  of  prosecution, 
by  motion  made  by  appellee  or  defendant  in  error,  as  other  motions  under 
rule  8,  unless  good  cause  is  shown  why  it  was  not  done  in  the  time  and 
manner  as  prescribed,  and  that  they  have  been  filed  at  such  time  and 
under  such  circumstances  as  that  the  appellee  or  defendant  in  error 
has  reasonably  not  suffered  any  material  injury  in  the  defense  of  the  case 
in  the  appellate  court.     In  deciding  said  motion,  the  court  will  give 
such  direction  to  the  case  as  will  cause  the  least  inconvenience  or  damage 
from  such  failure  so  far  as  practicable. 

40.  When  it  shall  be  found  that  the  rules  prescribed  for  the  prepa- 
ration of  a  case  for  submission  have  been  fully  complied  with  by  the 
appellant  or  plaintiff  in  error,  the  court  will,  in  its  discretion,  regard  this 
brief  as  a  proper  presentation  of  the  case,  without  an  examination  of 
the  record  as  contained  in  the  transcript,  and  may  found  its  decision 
thereon,  unless  the  appellee  or  defendant  in  error  shall,  by  the  time  of 
calling  of  the  case,  file  in  the  appellate  court  copies  of  his  brief,  to  be 
kept  there  with  the  transcript,  containing  his  objections,  succinctly  and 
definitely,  to  the  grounds  of  error  as  presented  in  the  propositions  of 
appellant  or  plaintiff  in  error  in  his  brief,  taking  up  each  of  them  in 
order,  and  stating  such  other  matters  contained  in  the  record,  in  the 
mode  prescribed  for  appellant  and  plaintiff  in  error;  as  may  sustain  his 
objection  to  each;  to  which  may  be  added  propositions  of  his  own,  sup- 
ported by  like  statements  of  what  is  in  the  record,  so  as  to  present  his 
view  of  the  case,  citing  the  proceedings  in  the  transcript,  with  the  pages, 
when  practicable,  to  which  he  refers  in  his  statements. 

41.  Whatever  of  the  statements  of  the  appellant  or  plaintiff  in  error 
in  his  brief  is  not  contested,  will  be  considered  as  acquiesced  in.     To 
each  of  his  said  objections  or  propositions  may  be  annexed  his  authorities, 
cited  in  the  order  indicated  for  the  brief  of  appellant  or  plaintiff  ID. 
error. 

41a.  On  or  before  the  day  fixed  for  the  hearing  of  the  cause  as  pre- 
scribed by  section  23  of  the  act  hereinbefore  referred  to,  and  before  the 
opening  of  the  court,  four  copies  of  the  brief  of  each  of  the  parties  re- 
quired to  be  filed  in  the  office  of  the  clerk  of  the  trial  court,  shall  be  filed 
with  the  papers  in  the  cause  in  the  office  of  the  clerk  of  the  court  of 
civil  appeals. 

42.  When  the  appellant  or  plaintiff  in  error  has  failed  to  prepare 
the  case  for  submission,  by  the  omission  of  what  is  required  after  bond  or 
affidavit  filed  for  appeal  and  for  writ  of  error  with  citation  served,  the 
appellee  or  defendant  in  error,  before  the  call  of  the  case,  may  file  in  the 


468  APPENDIX. 

appellate  court  a  brief  in  the  manner  required  of  the  appellant  or  plain- 
tiff in  error — except  that  his  propositions  will  be  shaped  so  as  to  show 
the  correctness  of  the  judgment — which  the  court  may,  in  its  discretion, 
regard  as  a  correct  presentation  of  the  case,  without  examining  the 
record  further  than  to  see  that  the  judgment  is  one  that  can  be  affirmed 
upon  the  view  of  the  case  as  presented  by  appellee  or  defendant  in  error. 
The  appellee  or  defendant  in  error  shall  be  entitled  to  the  custody  of  the 
transcript  after  it  is  filed  in  the  appellate  court,  for  the  purpose  of  pre- 
paring his  brief. 

43.  The  appellee  or  defendant  in  error  may  submit  the  record  upon  a 
suggestion    of  delay,  upon  making  a  brief  statement  of  the  character  of 
the  suit,  the  proceedings  therein,  and  the  judgment  rendered,  which 
will  be  required  in  every  case  of  such  submission  when  appellant  or  plain- 
tiff in  error  has  filed  no  brief.  If  this  is  done  in  a  case  properly  prepared 
for  submission  by  appellant  or  plaintiff  in  error,  it  will  be  considered 
an  acquiescence  in  the  statement  of  appellant  or  plaintiff  in  error,  in  his 
brief,  as  to  the  contents  of  the  record,  and  as  merely  a  denial  of  the  legal 
consequences  contended  for  by  the  appellant  or  plaintiff  in  error,  unless 
the  appellee  or  defendant  in  error  shall  also  file  a  brief,  as  heretofore 
provided,  which  he  may  do.     If  the  appellant  or  plaintiff  in  error  has 
not  prepared  the  case  for  submission,  the  record  will  be  examined  suf- 
ficiently to  ascertain  that  it  is  or  is  not  properly  a  delay  case,  and  if 
found  to  be  a  plain  case  of  delay,  it  will  be  acted  on  as  such;  but  if  not, 
it  will  be  reversed  or  referred  back  for  a  brief,  or  brief  and  argument,  on 
one  or  both  sides,  as  may  be  directed.    In  deciding  under  this  rule,  where 
the  case  has  not  been  prepared  for  submission  by  the  appellant  or  plain- 
tiff in  error,  the  court  will  be  required  to  look  only  to  the  substantial 
merits  as  they  may  appear  in  the  record. 

44.  tWhen  affirmance  is  asked  upon  certificate  filed,  there  need  be 
nothing  more  than  a  request  for  affirmance,  signed  by  the  party  or  his 
counsel.     It  shall  not  be  submitted  sooner  than  one  week  after  being 
filed,  if  the  court  should  be  in  session  that  length  of  time.    The  appellee 
or  defendant  in  error  may  be  heard  on  a  motion  to  dismiss  the  certificate, 
or  on  a  motion  to  file  the  transcript  of  the  record,  or  on  a  motion  to  set 
aside  judgment  rendered,  as  in  other  cases  of  rehearing. 

DEFECTIVE  BRIEF. 

45.  In  all  cases  wherein  the  brief  or  briefs  are  found  insufficient, 
either  in  a  proper  presentation  of  the  facts  or  proceedings  in  the  case,  or 
in  the  reference  to  the  authorities,  so  as  to  enable  the  court  to  decide  tha 
case  the  court  may  set  aside  the  submission  and  refer  it  back,  with  such 
orders  for  postponement,  filing  of  briefs,  reference  to  authorities,  by  one 
or  both  parties,  and  reargument,  written  or  oral,  as  may  be  deemed 
proper.  If  however,  one  party  has  fully  complied  with  the  rules,  and  has 
filed  a  satisfactory  brief  that  will  enable  the  court  to  decide  the  case,  arrd 
the  other  party  is  in  default,  and  has  not  filed  a  satisfactory  brief  in  ac- 
cordance with  the  rules,  the  court  may,  in  its  discretion,  disregard  the 
latter  party's  brief,  as  if  not  filed  in  the  case,  and  act  upon  that  alone 
which  has  been  properly  filed  in^accordance  with  the  rules. 


RULES   FOR   THE    COURTS   OF    CIVIL   APPEALS.  469 

AGREEMENTS  OF  COUNSEL. 

46.  All  agreements  of  parties  or  their  counsel  relating  either  to  the 
merits  or  conduct  of  the  case  in  the  court,  or  in  reference  to  a  waiver 
of  any  of  the  requirements  prescribed  by  the  rules,  looking  to  the  proper 
preparation  of  an  appeal  or  writ  of  error  for  a  submission,  shall  be  in 
writing,  signed  by  the  parties  or  their  counsel,  and  filed  with  the  tran- 
script or  be  contained  in  it,  and,  to  the  extent  that  such  agreement  may 
vary  the  regular  order  of  proceeding,  shall  be  subject  to  such  orders 
of  the  court  as  may  be  necessary  to  secure  a  proper  preparation  for  a 
submission  of  the  case. 

AI.GUMENTS  OF  COUNSEL. 

47.  When  the  case  is  properly  prepared  for  submission,  any  party 
who  has  filed  briefs  in  accordance  with  the  rules  prescribed  therefor, 
may,  upon  the  call  of  the  case  for  submission,  submit  an  argument  to  the 
court,  either  oral  or  plainly  written  or  printed,  which,  if  written  or 
printed,  may  be  left  on  file  with  the  transcript,  copies  of  which  need  not 
be  furnished,  unless  printed. 

48.  The  arguments  must  be  upon  the  disputed  points,  whether  of  law 
or  fact,  in  support  of  the  proposition  relied  on,  on  one  side,  and  objec- 
tions and  counter-propositions  on  the  other,  and  it  must  be  confined  to 
them,  avoiding  any  reference  or  comment  upon  positions  taken  in  the 
trial  court,  or  to  other  extraneous  matters  not  involved  in  or  pertaining 
to  that  which  is  found  in  the  record. 

49.  In  referring  to  statutes,  that  part  directly  bearing  upon  or  rele- 
vant to  the  position,  should  be  read  at  the  bar,  or  stated  in  the  written 
or  printed  arguments,  and  in  citing  elementary  books  or  decisions  of 
courts,  the  principle  should  be  stated,  or  so  much  should  be  read  or 
stated,  as  bears  directly  on,  or  tends  to  maintain,  the  proposition  for 
which  it  is  cited  in  the  brief. 

50.  After  the  case  has  been  presented  to  the  court  by  such  explana- 
tion as  may  be  necessary,  each  side  may  be  allowed  an  hour  in  argument 
at  the  bar;  with  twenty  minutes  more  in  conclusion  by  the  appellant; 
and,  after  being  so  presented,  if  the  magnitude  or  importance  of  the  case 
or  the  difficulty  of  the  questions  seem  to  require  it,  a  longer  time  may  be 
allowed.    Not  more  than  two  counsel  on  each  side  will  be  heard,  except 
upon  leave  of  the  court. 

51.  If  counsel  but  for  one  party  has  filed  briefs,  an  argument  by 
him  may  be  allowed,  conformably  to  the  preceding  rules,  as  nearly  as 
practicable,  under  the  direction  of  the  court. 

52.  Counsel  who  argue  a  case  at  the  bar  will  be  expected  to  be  able 
to  answer  questions  propounded  by  the  members  of  the  court,  relating  to 
the  matters  contained  in  the  record,  and  to  the  laws  or  authorities  cited 
in  the  argument. 

53.  Should  it  be  apparent  during  the  progress  of  the  trial,  or  after- 
wards, that  the  case  has  not  been  properly  prepared,  as  shown  in  the 
transcript,  or  properly  presented  in  the  brief  or  briefs,  or  that  the  law 


470  APPENDIX. 

and  authorities  have  not  been  properly  cited,  which  will  enable  the 
court  to  decide  the  case,  it  may  decline  to  receive  the  submission,  or, 
if  received,  may  set  it  aside  and  make  such  orders  as  may  be  necessary 
to  secure  a  more  satisfactory  submission  of  the  case;  or  should  it  appear 
to  the  court,  after  the  submission  of  the  cause,  that  the  statement  of  the 
facts  has  been  prepared  in  violation  of  the  rules,  the  court  may  re- 
quire the  plaintiff  in  error  or  appellant  to  furnish  four  printed  copies 
of  such  statement  of  facts,  and  upon  his  failure  to  do  so  may  disre- 
gard it.  If  the  violation  of  the  rule  be  flagrant,  the  court  may  disre- 
gard the  statement  of  facts  altogether,  unless  counsel  for  the  appel- 
lant or  plaintiff  in  error  shall  make  it  appear,  by  affidavit  or  otherwise, 
that  he  prepared  a  statement  giving  what,  in  his  opinion,  he  deemed  a 
fair  presentation  of  the  evidence,  prepared  in  accordance  with  the  rules, 
and  that  he  was  unable  to  get  it  agreed  to  or  approved.  But  should 
counsel  for  appellant  or  plaintiff  in  error  show  that  he  has  used  due 
diligence  to  have  a  proper  statement  of  facts  signed  and  approved,  and 
that  the  statement  of  facts  as  prepared,  is  the  result  of  the  fault  of  the 
counsel  for  the  opposite  party,  such  as  his  failure  or  refusal  to  agree  to 
a  proper  statement  presented  to  him,  the  costs  of  printing  the  statement, 
if  ordered,  shall  be  taxed  against  the  appellee,  or  defendant  in  error,  as 
the  case  may  be. 

53a.  If  after  the  submission  of  the  cause  the  court  find  that  the  tran— 
cript  is  not  prepared  as  required  by  the  rules  and  that  it  contains  mat- 
ter which  should  not  have  been  incorporated  therein,  the  court  may  in 
their  discretion  decline  to  proceed  further  with  the  case,  until  the  appel- 
lant or  plaintiff  in  error  presents  a  copy  of  the  transcript  from  which  all 
foreign  matters  have  been  omitted,  and  the  court  may,  in  addition 
thereto,  require  that  such  copy  shall  be  printed,  and  in  case  of  the  fail- 
ure of  such  party  to  comply  with  the  court's  order  within  a  reasonable 
time,  to  be  specified  in  such  order,  the  case  shall  be  dismissed. 

54.  When  a  case  has  been  properly  prepared  for  submission,  and  a 
satisfactory  oral  argument  has  been  made,  the  court  will  promptly  an- 
nounce its  judgment,  if  practicable,  at  the  next  succeeding  session  of 
the  court,  and,  when  deemed  necessary,  deliver  a  written  opinion,  if  not 
then,  at  some  time  during  the  term  of  the  court  . 

CUSTODY  OF  TRANSCRIPT. 

55.  Neither  the  transcript  nor  any  of  the  papers  in  a  case  shall  be 
withdrawn  from  the  custody  of  the  clerk,  nor  taken  from  his  office  or  the 
court  room,  without  a  receipt  left  therefor. 

56.  Cases,  while  under  submission,  either  on  the  merits  of  the  appeal 
or  on  motion,  are  no  longer  under  the  control  of  the  attorneys;  and, 
while  so  under  submission,  the  clerk  will  not  let  the  transcripts  of  such 
cases  go  out  of  his  office,  except  on  the  order  of  one  of  the  justices  of  the 
court.     While  not  under  submission,  either  before  submission  or  after 
decision,  the  parties  or  their  attorneys  may,  by  complying  with  rules  55 
and  GO,  obtain  possession  of  the  transcript ;  provided,  however,  that  when 
a  case  has  been  decided  upon  the  merits  of  the  appeal,  no  one,  except  the 


RULES  FOR  THE  COURTS  OF  CIVIL  APPEALS.          471 

losing  party  or  his  attorney,  shall  be  allowed  to  take  the  transcript  out  of 
the  clerk's  office,  until  after  said  party  has  filed  his  motion  for  a  rehear- 
ing1, or  until  the  time  for  filing  said  motion  has  expired. 

57.  Original  papers  sent  up  with  the  transcript  by  order  of  the  trial 
court  for  the  inspection  of  the  appellate  court,  will  be  retained  in  the 
office,  and  will  not  be  allowed  to  go  out  of  the  custody  of  the  clerk,  ex- 
cept by  order  of  one  of  the  justices  of  the  court,  which  order  must  be 
filed  with  the  papers  of  the  cause. 

58.  The  clerk  shall  furnish  the  parties  and  counsel  with  an  oppor- 
tunity, when  reasonably  applied  to  for  that  purpose,  to  inspect  the  rec- 
ords, judgments,  papers,  opinions,  books  and  dockets  in  his  office  in  which 
they  may  be  interested;  but  he  shall  not  be  required  to  permit  copies 
thereof  to  be  taken  without  his  consent.    He  shall,  upon  tender  of  rea- 
sonable compensation,  give  certified  copies  of  the  records  of  his  office. 

59.  The  clerk  shall  be  responsible  for  every  transcript  or  other  paper, 
in  a  cause,  that  is  missing  from  his  office,  unless  he  can  produce  the  re- 
ceipt of  an  attorney  for  the  same,  or  otherwise  show,  by  satisfactory 
evidence,  that  some  one  took  it  from  his  custody,  or  from  the  court 
room,  without  his  consent,  or  that  said  transcript  had  passed  into  the 
hands  of  one  of  the  justices  of  the  court,  and  had  not  been  returned  to 
his  custody. 

60.  No  attorney  shall  take,  or  suffer  to  be  taken,  any  transcript  or 
other  paper  for  which  he  has  receipted,  out  of  the  reach  of  the  court, 
so  that  it  can  not  be  produced  in  court  or  in  the  clerk's  office  when  it  is 
needed. 

61.  The  reporter  shall  have  access  to  the  minutes  and  judgments  of 
the  court,  and  shall  have  custody  of  the  transcripts,  briefs,  and  opinions 
so  long  as  it  may  be  necessary  to  discharge  his  duties  as  reporter. 

62.  In  all  cases  in  which  appeals  or  writs  of  error  are  dismissed,  the 
appellant,  or  party  filing  the  transcript,  without  further  leave  of  the 
court,  shall  have  the  right  to  withdraw  the  transcript,  unless  it  contains 
original  papers  belonging  to  an  adverse  party,  in  which  event  leave  of 
court  shall  be  had  before  such  original  papers  are  withdrawn. 

REHEARING  IN  THE  COURTS   OF  CIVIL  APPEALS. 

63.  Motion  for  rehearing  shall  be  made  and  conducted  strictly  in  ac- 
cordance with  the  statute,  which  describes  the  manner  of  this  proceeding. 

64.  Where  a  Court  of  Civil  Appeals  adjourns  for  the  term  within  less 
than  fifteen  days  after  the  rendition  of  judgment,  the  issuance  of  the 
mandate  shall,  unless  otherwise  ordered,  be  withheld  until  the  expira- 
tion of  said  period;  and  if,  within  that  period,  an  application  for  rehear- 
ing shall  be  presented  to  the  clerk  of  the  court  of  that  place,  the  issuance 
of  mandate  shall  be  further  withheld  to  await  the  action  of  the  court  on 
said  application. 

65.  Upon  the  rendering  of  the  judgment  in  the  Court  of  Civil  Ap- 
peals, as  well  as  upon  the  making  of  an  order  overruling  the  motion  for  a 
rehearing,  the  clerk  shall  immediately  give  notice  by  a  postal  card  to 
the  attorneys  of  the  respective  parties,  of  tbe  disposition  made  of  the 


472  APPENDIX. 

cause  or  of  the  motion,  as  the  case  may  be,  for  which  service  he  shall 
tax  the  usual  fee  as  a  part  of  the  costs  in  the  case.  But  the  mailing  of 
such  notices  shall  not  relieve  the  parties  of  the  responsibility  of  taking 
notice  of  the  disposition  of  the  cause  or  motion,  and  the  failure  to  receive 
a  notice  so  mailed  shall  be  no  cause  for  delay  in  taking  such  future 
action  as  may  be  desired  in  reference  to  the  case  within  the  time  pre- 
scribed by  the  statutes  and  rules. 

6G.  Upon  the  presentation  to  him  of  an  application  for  a  writ  of 
error,  the  clerk  of  the  Court  of  Civil  Appeals  shall  withhold  the  mandate 
until  properly  advised  of  the  disposition  of  the  case  by  the  Supreme 
Court. 


RULES  FOR  THE  COURT  OF  CRIMINAL  APPEALS. 

1.  The  clerk  of  the  Court  of  Criminal  Appeals  shall  be  governed 
by  the  rules  applicable  to  the  clerks  of  the  Courts  of  Civil  Appeals, 
except  where  a  different  rule  may  be  prescribed  by  statute. 

2.  The  rules  governing  motions,  arguments  of  counsel  and  applica- 
tions for  certiorari  to  complete  the  record  as  prescribed  by  the  Courts 
of  Civil  Appeals,  shall  apply  to  the  Court  of  Criminal  Appeals. 


RULES  FOR  THE  DISTRICT  AND  COUNTY  COURTS. 

PLEADINGS. 

1.  The  pleadings  in  the  district  and  county  courts,  shall,  as  pre- 
scribed by  statute,  be  by  petition  and  answer. 

2.  Pleadings,  with  the  exception  of  those  presenting  issues  of  law, 
must  be  a  statement  of  facts,  in  contradistinction  to  a  statement  of 
evidence,  of  legal  conclusions,  and  of  arguments.    Facts  are  adequately 
represented  by  terms  and  modes  of  expression  wrought  out  by  long  judi- 
cial experience,  perpetuated  in  books  of  forms,  in  law  and  equity,  which 
though  not  authoritatively  requisite,  may  generally  be  adopted  as  safe 
guides  in  pleading.    In  case  of  a  violation  of  this  rule,  to  such  an  extent 
as  to  produce  confusion,  uncertainty  and  unnecessary  length  in  pleading, 
the  court  may  require  the  matter  set  up  to  be  repleaded,  so  as  to  exclude 
the  superfluous  parts  of  it  from  the  record. 

THE   PETITION. 

3.  The  petition  of  plaintiff  shall  consist  of  an  original  petition,  and 
such  supplemental  petitions  as  may  be  necessary  in  the  course  of  plead- 


RULES    FOR   THE   DISTRICT   AND   COUNTY    COURTS.  473 

ing  by  the  parties  to  the  suit,  to  enable  the  plaintiff  to  state  all  the  facts 
presenting  his  cause  of  action,  and  such  other  facts  as  may  be  required 
to  rebut  the  facts  that  may  be  set  up  in  the  original  and  supplemental 
answers,  as  pleaded  by  the  defendant.  The  original  petition  and  the 
supplemental  petitions  shall  be  indorsed,  so  as  to  show  their  respective 
positions  in  the  process  of  pleading,  as  "original  petition,"  "plaintiff's 
first  supplemental  petition/'  "plaintiff's  second  supplemental  petition,"" 
and  so  on,  to  be  successively  numbered,  named,  and  indorsed. 

ORIGINAL    PETITION. 

4.  The  plaintiff,  in  the  original  petition,  in  addition  to  the  names 
and  residences  of  the  parties  and  the  relief  sought,  may  state  all  of -his 
facts,  so  as  to  present  together  different  combinations  of  facts,  amount- 
ing to  a  cause  or  causes  of  action,  as  has  been  the  usual  practice,  or  he 
may  state  the  cause  or  causes  of  action  in  several  different  counts,  each: 
within  itself  presenting  a  combination  of  facts,  specifically  amounting 
to  a  single  cause  of  action,  which,  when  so  drawn,  shall  be  numbered,, 
so  that  an  issue  may  be  formed  on  each  one  by  the  answer. 

PLAINTIFF'S  SUPPLEMENTAL  PETITION. 

5.  The  plaintiff's  supplemental  petitions  may  contain  exceptions,, 
general  denials  and  the  allegations  of  new  facts  not  before  alleged  by 
him,  in  reply  to  those  which  have  been  alleged  by  the  defendant. 

THE    ANSWER. 

6.  The  answer  of  defendant  shall  consist  of  an  original  answer,  and 
such  supplemental  answers  as  may  be  necessary,  in  the  course  of  plead- 
ing by  the  parties  to  the  suit,  to  enable  the  defendant  to  state  all  of  the 
exceptions  and  facts,  presenting  his  defense,  as  contained  in  his  orig- 
inal answer,  or  his  cross-action,  if  one  be  set  up  in  the  original  answer, 
and  such  other  facts  as  may  be  required  to  rebut  the  facts  that  may  be 
stated  in  the  original  and  supplemental  petitions,  as  pleaded  by  the 
plaintiff.     The  original  answer  and  the  supplemental  answers  shall  be 
indorsed,  so  as  to  show  their  respective  positions  in  the  process  of  plead- 
ing, as  "original  answer,"  "defendant's1  first  supplemental  answer,"  "de- 
fendant's second  supplemental  answer,"  and  so  on,  to  be  successively 
numbered,  named,  and  indorsed. 

ORIGINAL    ANSWER. 

7.  The  original  answer  may  consist  of  pleas  to  the  jurisdiction,  in 
abatement,  of  privilege,  or  any  other  dilatory  pleas;  of  exceptions,  gen- 
eral and  special;  of  general  denial,  and  any  other  facts  in  defense  by  way 
or  avoidance  or  estoppel,  the  same  being  pleaded  in  the  due  order  of 
pleading,  as  required  by  statute;  and  it  may  present  a  cross-action, 
which  to  that  extent  will  place  defendant  in  the  attitude  of  a  plaintiff. 


474  APPENDIX. 

Facts  in  avoidance  and  estoppel  may  be  stated  together,  or  in  several 
special  pleas,  each  presenting  a  distinct  defense,  and  numbered  so  so  as 
to  admit  of  separate  issues  to  be  formed  on  them. 

SUPPLEMENTAL    ANSWEES. 

8.  The  defendant's  supplemental  answers  may  contain  exceptions, 
general  denial,  and  the  allegations  of  new  facts,  not  before  alleged  by 
him,  in  reply  to  that  which  has  been  alleged  by  the  plaintiff. 

9.  The  original  petition,  first  supplemental  petition,  second  supple- 
mental petition,  and  every  other,  shall  each  be  contained  in  one  instru- 
ment of  writing,   and  so  with  the  original   answer  and  each   of  the 
supplemental  answers. 

10.  Each  supplemental  petition  or  answer,  made  by  either  party, 
shall  be  a  response  to  the  last  preceding  pleading  by  the  other  party, 
and  shall  not  repeat  the  facts  formerly  pleaded  further  than  is  neces- 
sary as  an  introduction  to  that  which  is  stated  in  the  pleading  then 
being  drawn  up.     These  instruments,  to  wit:  the  original  petition  and 
its  several  supplements,  and  the  original  answer  and  its  several  sup- 
plements, shall,  respectively,  constitute  separate  and  distinct  parts  of 
the  pleading  of  each  party;  and  the  position  and  identity,  by  number 
and  name,  with  the  indorsement  of  each  instrument,  shall  be  preserved 
throughout  the  pleadings  of  either  party. 

11.  Each  party  who  files  &,  supplement  of  any  number  (as  first,  sec- 
ond, third,  and  so  on),  shall  give  notice  thereof  by  asking  leave  of  the 
court,  and  filing  the  same  amongst  the  papers  of  the  cause,  with  the  ap- 
propriate indorsement  thereon,  indicating  its  number  and  name. 

AMENDMENT. 

12.  An  amendment  may  be  made  by  either  party,  upon  leave  of  the 
court  for  that  purpose,  or  in  vacation,  as  prescribed  by  statute — the 
object  of  an  amendment,  as  contradistinguished  from  a  supplemental 
petition  or  answer,  being  to  add  something  to,  or  withdraw  something 
from,  that  which  has  been  previously  pleaded,  so  as  to  perfect  that 
which  is  or  may  be  deficient,  or  to  correct  that  which  has  been  incor- 
rectly stated  by  the  party  making  the  amendment. 

13.  The  party  amending  shall  point  out  the  instrument,  with  its 
date,  sought  to  be  amended,  as  "original  petition,"  or  "plaintiff's  first 
supplemental  petition,"  or  others  filed  by  the  plaintiff,  or  as  "original 
answer,"  or  "defendant's  first  supplemental  answer"  or  others  filed  by 
the  defendant,  and  amend  such  instrument  by  preparing  and  filing  a 
substitute  therefor,  entire  and  complete  in  itself,  to  be  styled  and  in- 
dorsed, "amended  original  petition,"  or  "amended  first  supplemental 
petition,"   or  "amended  original   answer,"   or  "amended   first  supple- 
mental answer,"  and  so  on,  accordingly  as  said  instruments  of  pleading 
are  designated  in  rules  3  and  6. 

14.  Unless  the  substituted  instrument  shall  be  set  aside  on  excep- 
tions, for  a  departure  in  pleading,  or  on  some  other  ground,  the  instru- 


RULES    FOR   THE   DISTRICT   AND    COUNTY    COURTS.  475 

ment  for  which  it  is  substituted  shall  no  longer  be  regarded  as  a  part 
of  the  pleading  in  the  record  of  the  cause,  unless  some  error  of  the 
court  in  deciding  upon  the  necessity  of  the  amendment,  or  otherwise  in 
superseding  it,  be  complained  of,  and  exception  be  taken  to  the  action 
of  the  court,  or  unless  it  be  necessary  to  look  to  the  superseded  pleading 
upon  a  question  of  limitation. 

15.  When  either  party  may  have  occasion  to  plead  new  facts,  addi- 
tional to  those  formerly  pleaded  by  him,  which  constitute  an  additional 
cause  of  action  or  defense  permissible  in  the  suit,  he  shall  present  it 
as  an  amendment  to  the  original  petition,  or  original  answer  (unless  it 
is  in  its  nature,  a  response  to  some  pleading  of  the  opposite  party),  by 
substitution,  with  the  proper  number,  name  and  indorsement,  in  the 
same  manner  as  other  amendments. 

16.  When  either  supplement  or  amendment  made  to  pleading  is  of 
such  character,  and  is  presented  at  such  time  as  to  take  the  opposite 
party  by  surprise  (to  be  judged  of  by  the  court),  it  shall  be  cause  for  im- 
posing the  cost  of  the  term  upon,  and  charging  the  continuance  of  the 
cause  (both  or  either)  to  the  party  causing  the  surprise,  if  the  other 
party  demand  it,  and  shall  make  a  satisfactory  showing,  or  if  it  other- 
wise be  apparent  that  he  is  not  ready  for  trial,  on  account  of  said  sup- 
plement or  amendment  being  allowed  to  be  filed  by  the  court. 

EXCEPTIONS  TO  PLEADINGS. 

17.  General  exceptions  shall  point  out  the  particular  instrument  in 
the  pleadings,  to  wit:    the  original  petition  or  answer,  or  the  respective 
supplements  to  either;  and  in  passing  upon  such  general  exception  every 
reasonable  intendment  arising  upon  the  pleading  excepted  to  shall  be 
indulged  in  favor  of  its  sufficiency. 

18.  A   special   exception   shall   not   only   point  out   the  particular 
pleading  excepted  to,  but  it  shall  also  point  out  intelligibly  the  obscur- 
ity,  inconsistency,  duplicity,  generality  or  other  insufficiency  in  the 
allegations  in  the  pleading  objected  to.    The  general  expression  that  it 
is  vague,  uncertain,  and  the  like,  alone  shall  be  regarded  as  no  more 
than  a  general  exception. 

EXHIBITS    IN    PLEADING. 

19.  Notes,  accounts,  bonds,  mortgages,  records  and  all  other  written 
instruments,  constituting,  in  whole  or  in  part,  the  cause  of  action  sued 
on,  or  the  matter  set  up   in   defense,   may  be  made  a  part   of  the 
pleadings  by  copies  thereof,  or  the  originals,  being  attached  and  referred 
to  as  such,  in  aid  and  explanation  of  the  allegations  in  the  petition  or 
answer  made  in  reference  to  said  instruments,  but  will  not  thereby 
•relieve  the  pleader  from  making  the  proper  allegations  of  which  said 
exhibits  may  be  the  evidence,  in  whole  or  in  part.     No  other  instru- 
ment of  writing,  such  as  a  deed,  will,  document,  record  of  court,  or 
agreement,  which  is  not  sued  on  as  a  cause  of  action  by  plaintiff,  or  set 
up  as  matter  relied  on  in  defense  by  defendant,  but  is  designed  to  be 


476  APPENDIX. 

used  only  as  evidence  of  some  fact  that  is  alleged,  shall  not  be  made 
an  exhibit  in  the  pleading;  and  when  it  shall  be  so  attempted,  by 
attaching  such  instrument  and  referring  to  it  as  such,  the  court  will,  of 
its  own  motion,  or  at  the  instance  of  a  party,  cause  the  instrument  to 
be  detached  from  the  pleading,  and  adjudge  it  to  constitute  no  part 
thereof  by  an  order  of  court  entered  of  record,  at  the  cost  of  the  party 
violating  this  rule,  so  as  to  prevent  the  pleadings  from  being  incumbered 
with  that  which  is  or  may  be  the  only  evidence  in  the  case. 

20.  The  office  of  a  general  denial  by  the  defendant  is  to  throw  the 
burden  of  proof,  as  to  the  allegation  denied,  on  the  plaintiff.     The 
defendant  can  not  be  permitted  under  this  plea  to  introduce  special 
matters  in  avoidance  or  estoppel,  in  evidence  for  his  defense.    And  the 
same  rule  prevails  when  it  is  filed  by  plaintiff  to  facts  in  the  cross-action 
or  answer  of  defendant. 

MOTIONS. 

21.  The  clerk  shall  keep  a  motion   docket  in  which  all  motions, 
when  filed,  shall  be  placed,  with  the  names  of  the  parties  and  counsel, 
with  the  date   of  filing  and  its  name  and  the  number  of  the   case, 
which  filing  shall  be  considered  notice  of  said  motion  before  the  con- 
tinuance or  final  disposition  of  the  case  for  the  term,  except  where  it 
is  otherwise  provided  for  by  statute. 

22.  The  court  will  set  apart  a  particular  day  each  week  of  the  term, 
when  the  motions  previously  made,  in  which  proper  notice  has  been 
given,  shall  be  determined,  if  urged,  unless  for  good  cause  they  are 
postponed  to  a  day  during  the  term,  or  continued  by  consent  to  the 
next  term 

23.  When  notice  shall  be  given  of  objections  to  the  form  or  manner 
of  taking  and  returning  depositions,  either  party  may  require  it  to  be 
put  on  the  motion  docket  and  tried  as  other  motions;  provided,  if  not 
tried  sooner,  it  shall  be  decided  before  either  party  shall  be  required 
to  announce  readiness  for  trial  on  the  facts. 

DILATORY  PLEAS,  MOTIONS  AND  EXCEPTIONS,  WHICH  DO   NOT  GO  TO  THE 
MEEITS     OF    THE    CAUSE. 

24.  All  dilatory  pleas,  and  all  motions  and  exceptions  relating  to 
a  suit  pending,  which  do  not  go  to  the  merits  of  the  case,  shall  be 
tried  at  the  first  term  to  which  the  attention  of  the  court  shall  be 
called  to  the  same,  unless  passed  by  agreement  of  the  parties  with  the 
consent  of  the  court;  and  all  such  pleas  and  motions  shall  be  first  called 
and  disposed  of  before  the  main  issue  on  the  merits  is  tried. 

MOTIONS    AND    EXCEPTIONS    TO    MERITS. 

25.  All  motions  which  go  to  the  merits  of  the  case,  and  all  excep- 
tions, general  and   special,  which  relate  to  the   substance   or  to  the 
form  of  the  pleadings,  shall  be  decided  at  the  first  term  of  the  court, 


RULES    FOR   THE   DISTRICT   AND   COUNTY   COURTS.  477 

when  the  case  is  called  in  the  regular  order  for  trial  on  the  docket,  if 
reached,  whether  there  be  an  announcement  on  the  facts  or  not,  unless 
passed  by  agreement  of  parties  with  the  consent  of  the  court. 

CALL    FOR    TRIAL. 

26.  When  the  .case  is  called  for  trial,  the  exceptions,  if  any  remain 
undisposed  of,  shall  be  presented  for  determination,  and  shall  then  be 
decided  before  proceeding  to  the  trial  of  the  case  on  the  facts,  and  if 
not   presented,    they    shall    be   adjudged  by    the   court  to    have    been 
waived,  and  shall  be  so  entered  on  the  minutes  of  the  court,  the  cost  of 
filing  to  be  taxed  against  the  party  filing  them,  and  they  shall  consti- 
tute no  part  of  the  final  record,  unless  some  question  be  raised  upon  the 
action  of  the  court  in  reference  to  them,  and  they  are  presented  in  a 
bill  of  exceptions. 

27.  When  the  exceptions  have  been  presented  and  decided,  leave  may 
be  granted  to   either  or   both   parties   to   file   an   amendment   in   one 
instrument  of  writing  separate  from  those  which  have  been  previously 
filed  by  each,  which  shall  close  the  pleadings  in  the  case  to  be  then 
determined  by  the  court,  so  as  to  decide  all  the  questions  of  sufficiency 
arising  upon  them.     In  making  this  amendment,  the  party  shall  refer 
distinctly  to  such  instrument  as  he  desires  to  amend,  by  name  and  num- 
ber, as  in  the  other  amendments,  without  repleading  the  whole  of  it, 
but  shall  succinctly  state  such  additional  facts  to  be  added  thereto  as 
he    may    desire,  and    this    amendment    shall    be  styled    and    indorsed, 
"plaintiff's,"  or  "defendant's  trial  amendment;"  but  if  the  case  should 
not  be  then  tried,  the  party  or  parties  shall  replead,  as  in  other  cases  of 
amendment. 

28.  When  the  questions  of  law,  if  any,  have  been  determined  by  the 
court,  the  judge  may,  before  proceeding  to  trial,  by  the  aid  of  the 
counsel,  have  'the  pleadings  that  have  been  held  sufficient,  or  have  nol 
been  excepted   to,  read  over,  if  deemed  necessary,  and  make  a  brief 
memorandum  of  the  facts  stated,  or  issue  presented  in  the  pleadings, 
and  may  read  them  out  before  the  trial  commences,  so  as  to  inform 
the  parties  of  the  view  which  is  entertained  by  the  judge  of  the  matters 
of  fact  in  issue  as  presented  by  their  pleadings. 

29.  The  court,  when  deemed  necessary  in  any  case,  may  order  a 
repleader  on  the  part  of  one  or  both  parties,  in  order  to  make  their 
pleadings  substantially  conform  to  the  rules. 

30.  These  rules  of  pleadings  shall  apply  equally,  so  far  as  it  may  be 
practicable  to  apply  them,  to  interveners  and  to  parties,  when  moro 
than  one,  who  may  plead  separately. 

TRIAL    OF   THE   CASE. 

31.  The  plaintiff  shall  have  the  right  to  open  and  conclude,  both 
in  adducing  his  evidence  and  in  the  argument,  unless  the  burden  of 
proof  of  the  whole  case  under  the  pleadings  rests  upon  the  defendant, 
or  unless  the  defendant,  or  all  of  the  defendants,  if  there  should  be 


478  APPENDIX. 

more  than  one,  shall,  after  the  issues  of  fact  are  settled  and  before  the 
trial  commences,  admit  that  the  plaintiff  has  a  good  cause  of  action  as 
set  forth  in  the  petition,  except  so  far  as  it  may  be  defeated,  in  whole 
or  in  part  by  the  facts  of  the  answer  constituting  a  good  defense,  which 
may  be  established  on  the  trial;  which  admission  shall  be  entered  of 
record,  when  the  defendant,  or  the  defendants,  if  more  than  one,  shall 
have  the  right  to  open  and  conclude  in  adducing  the  evidence  and  in  the 
argument  of  the  cause. 

32.  The  court  shall  not  be  required  to  allow  a  case  to  go  to  trial  on 
the  facts,  when  the  pleadings  are  obviously  so  defective  that  a  material 
issue  has  not  been  formed;  and  in  such  case  the  court  shall  call  the  atten- 
tion of  the  parties  to  such  immaterial  or  defective  issue,  so  that  the  time 
of  the  court  may  not  be  wasted. 

33.  A  party  who  abandons  any  part  of  his  cause  of  action  or  defense, 
as  contained  in  the  pleadings,  may  have  that  fact  entered  of  record,  so 
as  to  show  that  the  matters  therein  were  not  tried,  and  he  shall  be  taxed 
with  the  cost  incurred  upon  such  pleading  so  abandoned.    He  shall  also 
be  taxed  with  the  cost  incurred  upon  pleading,  in  support  of  which  no 
evidence  was  offered,  to  be  determined  by  the  court  on  motion  at  the 
term  of  the  trial,  and  not  afterwards. 

COUNSEL  AND  ARGUMENTS. 

34.  Counsel  for  plaintiff,  or  for  defendant,  when  he  holds  the  affirm- 
ative of  the  issue,  shall  have  the  right  to  open  and  conclude,  but  if  he 
waives  the  right  to  open  the  argument,  he  shall  not  have  the  right  to 
conclude.     This  rule  will  apply  to  motions,  exceptions  to  evidence,  and 
all  other  matters  presented  to  the  court,  except  in  rules  to  show  cause, 
in  which  the  party  called  on  shall  begin  and  end  his  cause. 

35.  An  application  for  first  continuance  shall  not  be  argued. 

36.  In  all  arguments,  and  especially  in  arguments  on  the  trial  of  the 
case,  the  counsel  opening  shall  present  his  whole  case  as  he  relies  on  it, 
both  of  law  and  facts,  and  shall  be  heard  in  the  concluding  argument  only 
in  reply  to  the  counsel  on  the  other  side. 

37.  Counsel  for  an  intervenor  shall  occupy  the  position  in  the  argu- 
ment assigned  by  the  court,  according  to  the  nature  of  the  claim. 

38.  Arguments  on  questions  of  law  shall  be  addressed  to  the  court, 
and  counsel  shall  state  the  substance  of  the  authorities  referred  to  with- 
out reading  more  from  the  books  than  may  be  necessary  to  verify  the 
statement.     On  a  question  on  motion,  exceptions  to  the  evidence  and 
other  incidental  matters,  the  counsel  will  be  allowed  only  such  argument 
as  may  be  necessary  to  present  clearly  the  question  raised,  and  refer  to 
authorities  on  it,  unless  further  discussion  is  invited  by  the  court. 

39.  Arguments  on  the  facts  should  be  addressed  to  the  jury,  when 
one  is  impaneled  in  a  case  that  is  being  tried,  under  the  supervision  of 
the  court.    Counsel  shall  be  required  to  confine  the  argument  strictly  to 
the  evidence  and  to  the  arguments  of  opposing  counsel.    Mere  personal 
criticism  by  counsel  upon  each  other  shall  be  avoided,  and,  when  in- 
dulged in,  shall  be  promptly  corrected  as  a  contempt  of  court. 


RULES    FOE   THE   DISTRICT   AND   COUNTY    COURTS.  479 

40.  Side-bar  remarks,  and  remarks  by  counsel  of  one  side,  not  ad- 
dressed to  the  court,  while  the  counsel  on  the  other  side  is  examining 
a  witness,  or  arguing  any  question  to  the  court,  or  addressing  the  jury, 
will  be  rigidly  repressed  by  the  court. 

41.  The  court  will  not  be  required  to  wait  for  objections  to  be  made 
when  the  rules  as  to  arguments  are  violated;  but  should  they  not  be 
noticed  and  corrected  by  the  court,  opposing  counsel  may  ask  leave  of  the 
court  to  rise  and  present  his  point  of  objection.    But  the  court  shall  pro- 
tect counsel  from  any  unnecessary  interruption  made  on  frivolous  and 
unimportant  grounds. 

42.  It  shall  be  the  duty  of  every  counsel  to  address  the  court  from 
his  place  at  the  bar,  a-nd,  in  addressing  the  court,  to  rise  to  his  feet;  and,. 
while  engaged  in  the  trial  of  the  case,  he  shall  remain  at  his  place  in  the 
bar. 

43.  But  one  counsel  on  each  side  shall  examine  and  cross-examine 
the  same  witness,  except  on  leave  granted. 

44.  No  more  than  two  counsel  on  each  side  shall  be  heard  on  any 
question  or  on  the  trial,  except  in  important  cases,  and  upon  special  leave 
of  the  court. 

45.  The  attorney  first  employed  shall  be  considered  the  leading 
counsel  in  the  case,  and,  il  present,  shall  have  control  in  the  manage- 
ment of  the  cause,  unless  a  change  is  made  by  the  party  himself,  to  be 
entered  of  record. 

46.  An  attorney  of  record  is  one  who  has  appeared  in  the  case,  as 
evidenced  by  his  name  subscribed  to  the  pleadings  or  to  some  agreement 
of  the  parties  filed  in  the  case;  and  he  shall  be  considered  to  have  contin- 
ued as  such  attorney  to  the  end  of  the  suit  in  the  trial  court,  unless  there 
is  something  appearing  to  the  contrary  in  the  record. 

47.  No  agreement  between  attorneys  or  parties  touching  any  suit 
pending  will  be  enforced,  unless  it  be  in  writing,  signed  and  filed  with 
the  papers  as  part  of  the  record,  or  unless  it  be  made  in  open  court  and 
entered  of  record. 

48.  Counsel  of  the  party  for  whom-a  judgment  is  to  be  rendered,  shall 
prepare  the  form  of  the  judgment  to  be  entered  and  submit  it  to  the 
court. 

49.  Absence  of  counsel  will  be  no  good  cause  for  continuance  or  post- 
ponement of  the  cause  when  called  for  trial,  except  to  be  allowed  in  the 
discretion  of  the   court,  upon  cause   shown   or  upon  matters   within 
the  knowledge  or  information  of  the  judge,  to  be  stated  on  the  record. 

50.  No  attorney,  or  other  officer  of  the  court,  shall  be  surety  in  any 
cause  pending  in  the  court,  except  under  special  leave  of  court. 

51.  Any  attorney  who  shall  bring  a  fictitious  suit  as  an  experiment 
to  get  an  opinion  of  the  court,  or  who  shall  file  any  fictitious  pleading 
in  a  cause  for  such  a  purpose,  or  shall  make  statements  in  pleading, 
presenting  a  state  of  case  which  he  knows  to  be  groundless  and  false,  for 
the  purpose  of  securing  a  delay  of  the  trial  of  the  cause,  shall  be  held 
guilty  of  a  contempt;  and  the  court,  of  its  own  motion,  or  at  the  in- 
stance of  any  party,  will  direct  an  inquiry  to  ascertain  the  fact. 

52.  After  the  court  has  pronounced  its  opinion  upon  a  question  madey 


480  APPENDIX. 

no  further  argument  will  be  heard;  but  if  counsel  think  the  court  has 
fallen  into  error  as  to  law  or  fact,  they  may  submit  a  statement  in  writ- 
ing, which  the  court  will  receive  and  consider. 

BILLS  OF  EXCEPTION. 

53.  There  shall  be  no  bills  of  exception  taken  to  the  judgments  of 
the  court,  rendered  upon  those  matters,  which,  at  common  law,  constitute 
the  record  proper  in  the  case,  as  the  citation,  petition,  answer,  and  their 
supplements  and  amendments,  and  motions  for  a  new  trial,  or  in  arrest 
of  judgment  and  final  judgment. 

54.  The  charges  of  the  court  that  are  given,  and  those  asked  that 
are  refused,  when  signed  by  the  judge  and  filed  by  the  clerk,  being 
made  thereby  a  part  of  the  record  by  statute,  should  not,  in  civil  causes, 
be  made  a  part  of  a  bill  of  exceptions. 

55.  The  rulings  of  the  court  upon  applications  for  continuance  and 
for  change  of  venue,  and  other  incidental  motions,  and  upon  the  ad- 
mission or  rejection  of  evidence,  and  upon  other  proceedings  in  the  case 
not  embraced  in  the  two  preceding  rules,  when  sought  to  be  complained 
of  as  erroneous,  must  be  presented  in  a  bill  of  exceptions,  signed  by  the 
judge  and  filed  by  the  clerk,  or  otherwise  made  according  to  the  statute, 
and  they  will  thereby  become  a  part  of  the  record  of  the  cause,  and  not 
otherwise. 

56.  Exceptions  to  evidence,  admitted  over  objections  made  to  it  on 
the  trial,  may  be  embraced  in  the  statement  of  facts,  in  connection  with 
the  evidence  objected  to.  provided  the  statement  of  facts  be  presented 
to  the  judge  within  the  time  allowed  for  presenting  bills  of  exceptions, 
;and  be  filed  in  term-time. 

57.  Exceptions  to  the  admission  of  evidence  on  the  trial,  where  no 
reason  is  assigned  for  objecting  to  it,  shall  not  be  sustained  where  the 
-evidence  is  obviously  competent  and  admissible,  as  tending  to  prove  any 
of  the  facts  put  in  issue  in  the  pleadings;  and  in  all  cases  the  court,  when 
deemed  necessary,  may  call  upon  the  party  offering  the  evidence  to  ex- 
plain the  object  of  its  admission,  and  also  upon  the  party  excepting,  the 
reason  of  his  objections,  which,  when  done  in  either  or  both  cases,  may 
form  a  part  of  the  bill  of  exceptions. 

58.  Exceptions  to  the  admission  of  evidence,  where  the  ground  of 
objection  is  assigned,  shall  be  considered  in  reference   to   the  objec- 
tion made  to  it,  and  the  objection  shall  be  stated  in  the  bill  of  excep- 
tions taken  to  its  admission  or  exclusion. 

59.  Bills  of  exception  must  state  enough  of  the  evidence,  or  facts 
proved  in  the  case,  to  make  intelligible  the  ruling  of  the  court  ex- 
cepted  to  in  reference  to  the  issue  made  by  the  pleadings. 

60.  When  exceptions  are  made  to  the  admission  or  exclusion  of 
the  evidence  on  the  trial  before  the  court  or  before  the  jury,  the 
exceptions  will  be   then  decided,   after  such  argument   as   the  court 
may  allow,  and   a  memorandum  of  the  point  ruled  on  will  then  be 
made  by  the  judge,  if  the  bills  of  exception  are  not  then  prepared  and 
/signed,  which  ordinarily  should  be  done. 


RULES   FOR   THE   DISTRICT   AND   COUNTY    COURTS.  481 

CHARGE    OF  THE   COURT. 

61.  When  the  pleading  of  either  or  both  parties  contains  several 
combinations  of  facts,  either  together  or  in  several  counts  or  pleas, 
each  of  which  constitutes  a  cause  of  action  or  ground  of  defense, 
and  is  sufficiently   supported  by  the   evidence  to   require  a  charge, 
and  upon  which  an  issue  has  been  formed,  the  charge  should  be  so 
framed  as  to  present  to  the  jury  and  require  a  finding  by  them  upon 
the  issue  made,  upon  each  of  said  combinations  of  facts  so  contained 
in  the  pleadings,  which  may  be  necessary  to  a  decision  of  the  case. 

62.  When  a  full  charge  upon  the  issues  has  been  made,  so  far 
as  the  evidence  adduced  tending  to  establish  them  may  require,  the 
court  should  not  encourage  the  asking  of  additional  charges  cover- 
ing the  same  ground  substantially,  and  charges  asked  and  not  given 
should  not  be  read  in  the  hearing  of  the  jury,  or  taken  by  the  jury 
in  their  retirement. 

JUDGMENT. 

» 

63.  The  entry  of  the  judgment  should  carefully  recite  the  find- 
ing of  the  jury,  or  the  several  findings,  if  more  than  one,  upon  which  the 
judgment  of  the  court  is  based. 

64.  The  entry  of  the  judgment  shall  contain  the  full  names  of  the 
parties,  as  stated  in  the  pleadings,  for  and  against  whom  the  judgment 
is  rendered. 

65.  Judgments  rendered  upon  questions  raised  upon  citations,  plead- 
ings and  all  other  proceedings,  constituting  the  record  proper  as  known 
at  common  law,  must  be  entered  at  the  date  of  each  term  when  pro- 
nounced. 

66.  A  cause  that  has  been  submitted  for  trial  to  the  judge  on 
the  law  and  facts  shall  be  determined  and  judgment  rendered  therein 
during  the  term  at  which  it  has  been  submitted,  and  at  least  two 
days  before  the  end  of  the  term,  if  it  has  been  tried  and  submitted 
one  day  before  that  time,  unless  it  is  continued  after  such  submission 
for  trial,  by  the  consent  of  the  parties  placed  on  the  record,  and  in  such 
event  a  statement  of  facts  and  bills  of  exception  shall  be  prepared  and 
filed  upon  a  request  in  writing  by  either  party. 

MOTIONS    FOR   NEW   TRIAL   AND   IN    ARREST   OF   JUDGMENT. 

67.  Each  ground  of  a  motion  for  a  new  trial  or  in  arrest  of  judg- 
ment shall  briefly  refer  to  that  part  of  the  ruling  of  the  court,  charge 
given  to  'the  jury,  or  charge  refused,  admission  or  rejection  of  evi- 
dence, or  other  proceedings  which  are  designed  to  be  complained  of, 
in  such  way  as  that  the  point  of  objection  can  be  clearly  identified 
and  understood  by  the  court. 

68.  Grounds  of  objections  couched  in  general  terms — as  that  the 
court  erred  in  its  charge,  and  in  sustaining  or  overruling  exceptions 
to  the  pleadings,  and  in  excluding  or  admitting  evidence,  the  verdict 

31 — Pleading 


482 


APPENDIX. 


of  the  jury  is  contrary  to  the  evidence,  the  verdict  of  the  jury  is  con- 
trary to  law,  and  the  like — shall  not  be  considered  by  the  court. 

69.  When  the  case   is   determined  by   the  judge  without  a   jury, 
counsel   in   making   a   motion   for  new   trial   shall   specify    succinctly 
the  supposed  errors  of  law  or  fact,  or  both,  into  which  the  judge  has 
fallen,  as  far  as  may  be  practicable  to  do  so. 

70.  In  motions  for  continuance,  for  the  change  of  venue,  and  other 
preliminary  motions  made  and  filed  in  the  progress  of  the  cause,  the 
rulings  of  the  court  thereon  shall  be  considered  as  acquiesced  in,  unless 
presented  in  a  bill  of  exceptions;  and  the  rulings  thereon  shall  be  made 
a  ground  of  objection  in  motions  for  new  'trial  or  in  arrast  of  judgment, 
if  they  are  desired  to  be  relied  on  as  grounds  of  error. 

71.  Motions  for  new  trial  and  in  arrest  of  judgment  shall  be  de- 
termined on  .motion  day  of  each  week  of  the  term,  unless  postponed  to 
the  next  motion  day,  or,  for  good  cause  shown,  to  a  subsequent  day,  and 
not  later  than  two  entire  days  before  the  adjournment  of  the  court,  at 
which  time  all  such  motions  previously  filed  shall  be  determined. 

THE   STATEMENT   OF  FACTS. 

72.  Where  fhe  evidence  adduced  upon  the  trial  of  the  cause  is 
sufficient  to  establish  a  fact  or  facts  alleged  by  either  party,  the  testi- 
mony  of  witnesses,   and   the   deeds,   wills,   records,    or    other   written 
instruments,  admitted  as  evidence,  relating  thereto,  should  not  be  stated 
or  copied  in  detail  into  a  statement  of  facts,  but  the  facts  thus  estab- 
lished should  be  stated  as  facts  proved  in  the  case;  provided,  an  instru- 
ment, such  as  a  note  or  other  contract,  mortgage  or  deed  of  trust,  that 
constitutes  the  cause  of  action,  on  which  the  petition  or  answer,  or 
cross-bill,  or  intervention  is  found,  may  be  copied  once  in  the  statement 
of  facts. 

73.  When  there  is  any  reasonable  doubt  of  the  sufficiency  of  the 
evidence  to  constitute  proof  of  any  one  fact  under  the  preceding  rule 
there  may  then  be  inserted  such  of  the  testimony  of  the  witnesses  and 
written  instruments,  or  parts  thereof,  as  relate  to  such  facts. 

74:.  When  it  becomes  necessary  to  insert  in  a  statement  of  facts  any 
instrument  in  writing,  the  same  shall  be  copied  into  the  statement 
of  facts  before  it  is  signed  by  the  judge,  and  instruments  therein  only 
referred  to  and  directed  to  be  copied  shall  not  be  deemed  a  part  of  the 
record. 

75.  Where  there  is  no  dispute  about,  or  question  made  upon,  the 
validity  or  correctness  in  the  form  of  a  deed,  or  its  record,  a  will  or 
its  probate,  record  of  a  court,  or  any  written  instrument  adduced  in 
evidence,  it  should  be  described   (and  not  copied),  or  its  ^egal  effect 
as  evidence  stated,  as  a  fact  established. 

76.  When  questions  are  raised  on  such  instruments  as  are  mentioned 
in  the  preceding  rules,  only  so  much  of  such  parts  of  them  shall  be 
copied  into  the  statement  of  facts  as  may  be  necessary  to  present  th« 
question,  and  the  balance  of  them  shall  only  be  described,  or  presented, 
as  prescribed  in  the  preceding  rule. 


RULES    FOR   THE   DISTRICT    AND   COUNTY   COURTS.  483 

77.  The  commissions,  notices  and  interrogatories  in  depositions,  ad- 
duced in  evidence,  shall  in  no  case  be  inserted  or  copied  into  a  statement 
of  facts,  but  the  evidence  thus  taken  and  admitted  shall  appear  in  the 
statement  of  facts,  in  the  same  manner  as  though  the  witness  had  been 
on  the  stand  in  giving  his  evidence,  and  not  otherwise,  in  form  or  sub- 
stance. 

78.  Neither  the  notes  of  a  stenographer  taken  upon  the' trial,  nor 
a  copy  thereof  made  at  length,  shall  be  filed  as  a  statement  of  facts;  but 
the  statement  made  therefrom  shall  be  condensed  throughout  in  accord  - 
ance  with  the  spirit  of  the  foregoing  rules  upon  this  subject. 

CLERKS. 

79.  The  clerks  of  the  district  and  county  courts  shall  keep  a  court 
docket,  in  a  well-bound  book,  ruled  into  columns,  in  which  they  shall 
enter,  in  the  first  column,  number  of  case  and  name  of  attorneys;  second, 
names  of  the  parties;  third,  nature  of  the  action;  fourth,  the  pleas;  fifth, 
rulings  of  former  terms:  si.rth,  the  motions  and  rulings  of  the  present 
term.        • 

SO.     The  cases  shall  be  placed  on  the  docket  as  they  are  filed. 

81.  The   clerk   shall    at   each   term   make   out   two   copies    of   this 
docket,  one  for  the  use  of  the  court,  and  one  for  the  use  of  the  bar. 

82.  In  preparing  the  court  docket,  it  shall  be  the  duty  of  the  clerk 
to  designate  the  suits  by  regular  consecutive  numbers,  called  file  num- 
bers, and  he  shall  mark  on  each  paper  in  every  case,  the  file  number  of 
the  cause. 

83.  Tn  every  case  appealed  to  a  court  of  civil  appeals,  the  clerk 
shall,   in   making  up   the  docket   at   each   succeeding  term,   keep   the 
said  cause  in  its  proper  place  on  the  docket  for  disposition  after  being 
decided;  and  at  the  next  term  after  issuing  a  writ  of  error,  the  clerk 
shall  replace  the  cause  on  the  docket  with  its  original  file  number. 

84.  In  making  a  complete  record,  as  prescribed  by  statute,  all  the 
proceedings  in  the  case  shall  be  entered  in  the  order  of  time  in  which 
they  occur;  provided,  amended  pleadings  shall  take  the  place  of  those 
for  which  they  are  substituted,  and  the  pleading  thus  superseded  (except 
such  as  are  specified  in  rule  14),  and  those  that  are  abandoned  as  shown 
by  an  order  or  judgment  of  the  court,  shall  be  left  out  of  the  record. 

TRANSCRIPT    ON    APPEAL    OR    WRIT    OF    ERROR. 

85.  In  making  a  transcript,  the  proceedings  shall  be  entered  in  the 
order  of  time  in  which  they  occurred,  as  prescribed  in  the  preceding  rule 
unless,  with  the  approval  of  the  judge,  counsel  on  each  side  shall  agree 
in  writing,  to  be  itself  filed  and  copied  in  the  transcript,  directing  the 
clerk  which  of  the  papers  may  be  left  out,  as  being  useless  in  the  decision 
of  the  case;  provided,  subpoenas  shall  not  be  inserted,  nor  shall  the  cita- 
tions, in  cases  where  the  defendant  or  defendants  have  filed  answers, 
unless  some  question  is  made  upon  them  which  will  require  them  to  be 
copied. 


484  APPENDIX. 

86.  All  bills  of  exceptions  and  statements  of  facts  shall  be  literally 
transcribed;  and  the  clerks  are  hereby  prohibited  from  copying  as  parts 
of  the  same  any  instrument  in  writing,  or  document  not  originally  in- 
serted therein,  but  merely  referred  to  and  directed  to  be  copied  from 
some  other  paper  in  the  case. 

87.  In  copying  the  proceedings  inserted  in  the  transcript,  there  shall 
be  a  space  left  between  them,  so  that  each  one  can  readily  be  dis- 
tinguished. 

88.  On  the  left  hand  margin  of  the  page  of  each  proceeding  the  clerk 
shall  note  its  name,  and  the  date  of  its  occurring  or  being  filed.    This 
may  be  dispensed  with  in  printed  transcripts;  but  in  all  cases  the  clerk 
shall  copy,  in  connection  with  each  paper  filed,  the  file  mark  subscribed 
or  indorsed  thereon. 

89.  The  pages  shall  be  numbered  at  the  bottom,  on  the  left  hand  of 
each  page. 

90.  The  transcript  may  be  either  written  or  printed.    If  written,  it 
shall  be  on  good  white  paper,  with  black  ink,  in  a  plain,  round  hand, 
not  confused  by  running  words  together  or  by  flourishes,  and  with 
sufficient  space  between  the  lines  to  be  easily  read,  and  on  one  side  only 
of  each  sheet  of  paper,  with  no  sheets  cut  or  mutilated,  and  the  sheets 
shall  be  entire  and  filled  with  writing,  so  as  to  leave  no  blanks  larger 
than  the  ordinary  spaces  left  between  the  different  proceedings  to  dis- 
tinctly separate  them;  and  all  the  sheets  upon  which  it  is  written  shall 
be  fastened  together  at  the  upper  end  with  tape,  ribbon,  or  something  of 
the  kind,  and  sealed  over  the  tie  with  the  seal  of  the  court.   When  the 
transcript  is  printed  it  must  be  on  both  sides  of  the  paper,  in  not  less 
than  small  pica  type,  bound  and  paged  in  pamphlet  form,  of  octavo  size, 
and  fastened  at  the  back  with  the  tie  and  seal  of  the  court;  but  in  other 
respects  shall  conform  to  the  rules  laid  down  for  written  transcripts. 

91.  The  caption  of  the  transcript  shall  be  in  the  following  form, 
to  wit: 

"THE  STATE  or  TEXAS,  ) 

"County  of f 

"At  a  term  of  the  district  [or  county]  court,  begun  and  holden 

at ,  within  and  for  the  county  of ,  before  the  Hon. 

,  and  ending  on  the  ....  day  of ,  A.  D ,  the 

following  case  came  on  for  trial,  to  wit : 

"A.  B.,  plaintiff, 

v. 
"C.  D.,  defendant." 

9.2.  There  shall  be  an  index  on  the  first  pages  preceding  the  caption, 
giving  the  name  and  page  of  each  proceeding.,  including  the  name  and 
page  of  each  instrument  in  writing  and  agreement,  and  the  testimony 
of  each  witness  in  the  statement  of  facts,  as  it  appears  from  the  tran- 
script. The  index  shall  not  be  alphabetical,  but  shall  conform  to  the 
order  in  which  the  proceedings  appear  as  transcribed. 

93.  The  transcript  shall  contain  a  bill  of  costs,  regularly  made  out 
and  copied. 


RULES    FOR   THE   DISTRICT   AND   COUNTY   COURTS.  475 

94.  It  shall  conclude  with  a  certificate,  under  the  seal  of  the  court, 
that  it  contains  a  true  copy  of  all  the  proceedings  in  the  cause,  and 
shall  be  dated  and  signed  officially  by  the  clerk. 

95.  The  clerk  having  made  a  transcript,  upon  the  application  of 
either  party  or  his  counsel,  as  prescribed  in  case  of  appeal,  and  in  case 
of  writ  of  error,  as  directed  by  law,  shall  deliver  it  to  such  party  or  his 
counsel  when  so  made  out,  on  demand,  such  delivery  as  to  the  appellant 
or  plaintiff  in  error  to  be  made  to  him  or  his  counsel  within  sixty  days 
from  the  perfection  of  the  appeal  or  the  service  of  the  writ  of  error. 

96.  The  notice  of  appeal  and  giving  a  bond  on  an  appeal,  and  the 
filing  of  a  petition  and  bond  for  writ  of  error,  and  the  service  of  cita- 
tions, will  be  regarded  as  an  application  to  the  clerk  to  prepare  at  once 
a  transcript  of  the  record  for  the  appellant,  or  plaintiff  in  error,  without 
further  application. 

97.  The  appellee,  or  defendant  in  error,  or  his  counsel,  to  be  en- 
titled to  a  transcript  of  the  record,  shall  specially  make  an  application 
to  the  clerk  to  make  it  out  for  him. 

98.  The  clerk,  having  prepared  a  transcript,  shall  indorse  upon  it  as 
follows,  to  wit: 

"J.  K.,  Appellant,  or  Plaintiff  in  Error, 

v. 
"N.  M.,  Appellee,  or  Defendant  in  Error. 

"From County." 

And  on  delivery  of  it  to  the  party,  or  to  his  counsel,  who  had  applied 
for  it,  he  shall  in  all  cases  indorse  upon  it,  before  it  finally  leaves  his 
hands,  as  follows: 

"Applied  for  by  P.  S.  on  the day  of ,  A.  D , 

and  delivered  to  P.  S.  on  the day  of ,  A.  D ," 

and  shall  sign  his  name  officially  thereto.    The  same  indorsement  shall 
be  made  on  certificates  for  affirmance  of  the  judgment. 

99.  Unless  when  specially  directed  by  statute,  the  clerk  of  a  trial 
court  is  not  bound  to  transmit  any  transcript  to  a  Court  of  Civil  Appeals. 

100.  When  the  clerk  shall  have  presented  a  transcript  for  examina- 
tion to  the  party  or  his  counsel  who  has  applied  for  it,  and  it  is  found, 
in  any  particular  whatever,  to  have  been  made  out  in  violation  of  any 
of  the  preceding  requirements,  he  shall  be  at  liberty  to  return  it  as  not 
being  a  complete  and  properly  prepared  transcript,  in  time  for  correc- 
tion by  the  clerk.    And  the  reception  of  it  by  the  party  or  his  counsel, 
without  being  so  returned  for  such  purpose,  will  be  regarded  as  an  as- 
sumption by  him  of  all  responsibility  for  any  and  all  deficiencies  found  in 
the  transcript,  resulting  from  the  violation  of  these  rules  or  of  the 
statutes. 

ASSIGNMENT   OT    ERRORS. 

101.  The  appellant  or  plaintiff  in  error  shall  file  his  assignment 
of  error  in  the  trial  court  as  prescribed  by  statute;  and  the  appellee 
or  defendant  in  error  may  file  cross-assignments  with  the  clerk  of 
the  trial  court  when  he  files  his  brief,  which  assignments  may  be 


486  APPENDIX. 

incorporated  in  his  brief  and  need  not  be  copied  in  the  transcript. 
In  such  cases  one  of  the  copies  filed  in  the  Courts  of  Civil  Appeals 
shall  contain  a  certificate  of  the  clerk  of  the  trial  court  showing  that 
it  is  a  copy  of  the  brief  filed  in  his  office,  and  the  date  of  its  filing. 

BRIEFS. 

102.  Appellant  or  plaintiff  in  error  shall  file  a  copy  of  his  brief 
in  the  trial  court  as  directed  by  statute,  which  shall  be  received  by 
the  clerk,  and  he  shall  indorse  upon  it  his  filing,  with  the  date  of  its 
delivery  to  him,  and  keep  it  among  the  papers  of  the  cause,  subject 
to  inspection,  in  his  office,  by  any  of  the  parties  or  their  counsel,  and- 
shall  upon  request,  deliver  a  certified  copy  of  it,  and  of  his  filing, 
with  its  date;  or  if  copies  thereof  shall  be  presented  to  him,  he  shall 
certify  thereto  for  the  party  requesting  it,  but  it  shall  not  be  copied 
in  the  transcript. 

JURISDICTION   OF   THE   DISTRICT   COURT  OVER   APPEALS   OR   WRITS   OF 

ERROR. 

103.  When  there  shall  be  no  bond  or  affidavit  filed,  the  appeal  or 
writ  of  error  shall  be  considered  as  abandoned. 

104.  When  no  transcript  of  the  record,  or  no  certificate  for  affirm- 
ance has  been  filed  in  a  court  of  civil  appeals,  at  the  term  of  the  court 
to  which  the  appeal  or  writ  of  error  in  which  citation  has  been  served 
is  returnable,  the  appeal  or  writ  of  error  shall  be  considered  as  aban- 
doned, of  which  the  certificate  of  the  proper  clerk  of  the  appellate 
court,  given  at  the  end  of  said  term,  that  no  such  case  has  been  filed 
in  said  court,  shall  be  prima  facie  evidence. 

105.  .Rules  for  the  government  of  the  district  and  county  courts, 
heretofore  made  and  published,  shall  be  superseded  from  and  after  the 
time  when  these  rules  shall  go  into  effect. 

RULES  OF  THE  DISTRICT  COURT  IN  APPEALS   IN  ADMINISTRATION 
CASES  FROM  THE  COUNTY  COURT. 

106.  Motions   to   dismiss   appeals   shall  be  placed   on  the  motion 
docket  and  determined  as  other  motions. 

107.  Motions  for  certiorari  to  perfect  the  record  shall  be  accom- 
panied by  a  sworn  statement,  showing  in  what  particular  the  tran- 
script is  defective,  unless  it  shall  sufficiently  appear  by  the  record 
itself.      The   cost   of  the  motion   and   additional  record,  and   of  the 
term,  if  it  causes  a  continuance  of  the  case,  shall  be  taxed  against 
the  appellant,  whose  duty  it  is  to  have  a  correct  record  filed,  at  the 
discretion  of  the  court. 

108.  In    appeals   from   the    county    court   in    cases   pertaining   to 
the  estates  of  deceased  persons,  the  transcript  shall  not  contain  any- 
thing which  does  not  relate  to  the  order,  decision  or  judgment  ap- 
pealed from.     Where  the  appeal  has  been  taken  by  the  same  person 


RULES   FOR   THE   DISTRICT   AND   COUNTY    COURTS.  487 

from  more  than  one  order,  decision  or  judgment  entered  of  record 
in  the  same  estate,  at  the  same  term  of  the  county  court,  all  of  the 
proceedings  in  each  appeal  being  kept  distinct,  may  be  embraced  in 
the  same  transcript. 

RULES  GOVERNING  IN  CRIMINAL  CASES  IN  COUNTY  AND  DISTRICT 

COURTS. 

109.  The  clerks  of  the  district  and  county  courts  shall  record  the 
proceedings  had  in  their  courts  in  the  order  of  time  in  which  they 
occur. 

110.  The  record  should  show,  and  it  should  appear  in  the  trans- 
cripts of  the  record  for  the  Court  of  Criminal  Appeals : 

First.  That  the  indictment  was  presented  in  open  court,  a  quorum 
of  the  grand  jury  being  present. 

Second.  That  the  defendant  pleaded  to  the  indictment,  or  that  a 
plea  was  entered  for  him. 

Third.  In  capital  felonies,  that  the  defendant  was  arraigned  and 
pleaded,  or  that,  upon  his  refusal  to  plead,  a  plea  was  entered  by  the 
court. 

Fourth.  That  the  jury  trying  the  causes  were  impaneled  and  sworn 
according  to  law. 

Fifth.     That  a  final  judgment  was  entered  in  the  cause. 

111.  Transcripts  of  the  record  for  the  Court  of  Criminal  Appeals 
shall  not  be  incumbered  with  copies  of  capiases,  bonds,  recognizances, 
subpoenas,  attachments  for  witnesses,  or  any  of  the  proceedings  had 
on  a  former  trial,  where  a  new  trial  has  been  granted,  unless  there  is 
some  question  expressly  raised  on  the  trial,  with  reference  to  such  pro- 
ceedings, which  requires  revision  in  the  Court  of  Criminal  Appeals,  or 
in  scire  facias  cases,  on  appeal  or  writ  of  error. 

112.  In  preparing  transcripts  the  following  order  shall  be  observed, 
to  wit: 

First.  The  index,  which  must  refer  to  the  proceedings  in  the  order 
they  appear  in  the  record. 

Second.  The  caption,  which  shall  be  as  follows:  "The  State  of 

Texas,  county  of At  a  term  of  the court,  begun 

and  holden  within  and  for  the  county  of at on  the 

day  of ,  A.  D.  18.  .,  and  which  adjourned  on  the 

day  of ,  A.  D.  18.  .,  the  Hon ,  judge 

thereof,  presiding,  the  following  cause  came  on  for  trial,  to  wit: 

IThe  State  of  Texas, 
v. 
A.B., ..» 

Third.     The  time  and  manner  of  the  presentation  of  indictment. 

Fourth.     The  indictment  or  information. 

Fifth.     The  pleas  of  defendant. 

Sixth.     The  verdict  and  judgment. 

Seventh.     The  statement  of  facts. 

Eighth.     The  charge  of  the  court. 


488  APPENDIX. 

Ninth.     The  charges  refused. 

Tenth.     Bills  of  exception. 

Eleventh.  Motion  for  new  trial,  and  motion  in  arrest  of  judgment, 
and  notice  of  appeal. 

Twelfth.  Such  other  pleas,  motions  and  orders  as  are  made  during 
the  trial  of  the  cause. 

Thirteenth.  Final  judgment  [or  in  a  misdemeanor  case  the  recog- 
nizance or  statement  that  defendant  is  in  a  jail.] 

Fourteenth.  Assignment  of  errors,  if  any  are  filed,  and  request, 
if  any,  to  send  transcript  to  a  branch  of  the  court  other  than  that  to 
which  the  appeal  is  returnable. 

Fifteenth.  Certificate  of  the  clerk,  under  the  seal  of  the  court, 
which  shall  certify  that  the  transcript  contains  a  true  copy  of  all  the 
proceedings  had  in  the  cause. 

113.  In  preparing  the  transcript  the  following  directions  must  also 
be  observed:     It  shall  be  written  on  good  paper,  on  one  side  only,  in 
a  neat,  legible  hand,  free  from  erasures  and  interlineations,  leaving 
a  margin  of  sufficient  width,  in  which  margin  the  clerk  shall  note 
the  name  of  each  proceeding,  and  the  time  of  its  occurring  or  being  filed, 
and  at  the  left-hand  lower  corner,  mark  the  number  of  each  page. 
At  the  end  of  each  paper  must  be  copied  the  file  marks  indorsed  thereon, 
and  a  space  should  be  left  between  the  record  of  each  separate  paper 
or  proceeding. 

114.  The  transcript  must  be  fastened  at  the  upper  end  with  tape 
or  ribbon,  and  sealed  over  the  tie  with  the  seal  of  the  court,  and 
folded  and  indorsed  as  follows: 

"A.  B.,  appellant, 

v. 

"The  State,  appellee. 
"From county  district  court  [or  county  court],  A.  D.  18.  .." 

115.  The  statement   of  facts  must  contain  a  full-  and  complete 
statement  of  all  facts  in  evidence  on  the  trial  of  the  cause,  including 
copies  of  all  papers,  documents  and  exhibits  adduced  in  evidence,  also 
the  proof  of  venue  and  identification  of  defendant. 

110.  The  transcript  of  the  record,  where  defendant  has  been  con- 
victed of  a  misdemeanor,  must  be  delivered  to  the  party  appealing, 
or  his  counsel,  but  if  not  applied  for  before  the  twentieth  day  before 
the  commencement  of  the  term  of  the  Court  of  Criminal  Appeals  to 
which  the  appeal  is  returnable,  the  clerk  shall  transmit  the  same  by 
mail,  paying  the  postage  thereon,  to  the  clerk  of  the  Court  of  Criminal 
Appeals. 

117.  Transcripts  of  the  record,  where  defendants  have  been  con- 
victed of  a  felony,  shall  be  prepared  within  twenty  days  after  the 
adjournment  of  the  court,  and  sent  by  mail,  postpaid,  to  the  clerk  of 
the  Court  of  Criminal  Appeals,  at  the  branch  to  which  the  appeal  is 
returnable.  But  where  the  defendant  or  his  counsel  directs  the  tran- 
script to  be  sent  to  a  branch  of  the  court  where  the  term  is  held 
before  the  term  to  which  the  appeal  is  returnable  by  law,  the  clerk 


EULES    FOE   THE   DISTEICT   AND   COUNTY    COUETS.  489 

shall  so  transmit  it,  and  send  with  such  transcript  a  certified  copy  of 
such  order  or  direction. 

118.  The  clerk  shall  immediately  after  the  adjournment  of  the 
court  at  which  appeals  in  criminal  cases  are  taken,  make  out  a  cer- 
tificate under  his  seal  of  office,  exhibiting  a  list  of  all  such  cases 
where  the  defendant  has  appealed.     This  certificate  shall  show  the 
style  of  the  cause  upon  the  docket,,  the  offense  of  which  the  defendant 
stands  convicted,  the  day  on  which  the  judgment  was  rendered,  and 
the  day  on  which  the  appeal  was  taken,  which  list  he  shall  transmit 
to  the  attorney-general  at  Austin. 

119.  It  shall  be  the  duty  of  the  district  and  county  attorney  to 
see  that  the  judgments  in  criminal  cases  are  properly  entered  by  the 
clerks,  and,  when  practicable,  they  should  be  present  when  the  minutes 
are  read. 

GENEBAL   EULES. 

1.  Any  supposed  violation  of  the  rules  prescribed  in  the  conduct 
of  a  cause,  to  the  prejudice  of  a  party,  may  be  reserved  by  bill  of 
exception,  presented  as  a  ground  for  new  trial,  and  assigned  as  error 
by  the  party  who  may  conceive  himself  aggrieved  by  such  supposed 
violation. 

2.  The  foregoing  rules  shall  go  into  effect  and  be  of  force  in  all 
the  courts  of  the  State,  to  which  they  are  applicable,  from  and  after 
this  date  (October  8,  1892);  but  shall  not  effect  cases  pending  in  the 
Supreme  Court  at  the  time  of  the  organization  of  the  Courts  of  Civil 
Appeals,  which  cases  shall  be  controlled  by  the  rules  for  the  government 
of  the  Supreme  Court  at  the  time  the  appeals  in  such  cases  were  per- 
fected.   Except  as  to  such  cases,  all  former  rules  are  hereby  superseded. 


GLEBE'S  OFFICE,  SUPBEME  COUET, 
AUSTIN,  TEXAS,  February  7,  1901. 

I,  Charles  S.  Morse,  Clerk  of  the  Supreme  Court  of  Texas,  hereby 
certify  that  the  above  and  foregoing  thirty-six  pages  contain  a  true 
and  correct  copy  of  the  rules  adopted  by  this  court  on  the  8th  day  of 
October,  1892,  together  with  all  amendments  made  thereto  up  to  this 
date,  for  the  government  of  the  courts  of  Texas.  I  further  certify 
that  all  of  said  rules  and  amendments  are  now  in  force  and  effect. 

WITNESS  MY  HAND  and  the  seal  of  said  court  this  the 
[L.  s.]  seventh  day  of  February,  A.  D.  1901. 

CHAS.  S.  MOBSE,  Clerk. 


490  APPENDIX. 

APPELLATE  JURISDICTION  OF  SUPREME  COURT. 

SUPREME  COURT — WRITS  OF  ERROR  TO  COURTS  OF  CIVIL  APPEALS. 

SECTION  1.  Be  it  enacted  by  the  Legislature  of  the  State  of  Texas: 
That  article  101  la  of  the  Revised  Civil  Statutes  of  Texas,  as  amended 
by  chapter  14  of  the  acts  of  the  special  session  of  the  Twenty-second 
Legislature,  be  amended  so  as  to  read  as  follows: 

Article  101  la.  All  cases  shall  be  carried  up  to  the  Supreme  Court 
by  writs  of  error  upon  final  judgment,  and  not  on  judgments  revers- 
ing and  remanding  cases,  except  in  the  following  cases,  to  wit : 

1.  Where  the  State  is  a  party  or  where  the  railroad  commissioners 
are  parties. 

2.  Cases  which  involve  the  construction  and  application  of  the  Con- 
stitution of  the  United  States  or  of  the  State  of  Texas,  or  of  an  act  of 
Congress. 

3.  Cases  which  involve  the  validity  of  a  statute  of  the  State. 

4.  Cases  involving  the  title  to  a  State  office. 

5.  Cases  in  which  a  Civil  Court  of  Appeals  overrules  its  own  de- 
cisions or  the  decision  of  another  Court  of  Civil  Appeals,  or  of  the 
Supreme  Court. 

6.  Cases  in  which  the  judges  of  any  Court  of  Civil  Appeals  may 
disagree. 

7.  Cases  in  which  any  two  of  the  Courts  of  Civil  Appeals  may  hold 
differently  on  the  same  question  of  law. 

8.  When  the  judgment  of  the  Court  of  Civil  Appeals  reversing  a 
judgment  practically  settles  the  case,  and  this  fact  is  shown  in  the 
petition  for  writ  of  error,  and  the  attorneys  for  petitioners  shall  state 
that  the  decision  of  the  Court  of  Civil  Appeals  practically  settles 
the  case,  in  which  case,  if  the  Supreme  Court  affirms  the  decision  of 
the  Court  of  Civil  Appeals,  it  shall  also  render  final  judgment  ac- 
cordingly. 

Whereas,  there  are  a  great  number  of  bills  now  pending,  and  the 
session  is  nearing  its  close,  therefore,  there  exists  an  imperative  public 
necessity  and  emergency  that  the  constitutional  rule  requiring  bills 
to  be  read  on  three  several  days  be  suspended,  and  that  this  act  take 
effect  from  and  after  its  passage,  and  it  is  so  enacted. 

Approved  May  6,  1895. 


PROCEDURE  TO  OBTAIN  WRIT  OF  ERROR.  491 


PKOCEDUKE  TO  OBTAIN  WRIT  OF  EEROE  IN  SUPEEME 

COUET. 

SUPREME  COURT WRITS  OF  ERROR  TO  COURTS  OF  CIVIL  APPEALS. 

SECTION  1.  Be  it  enacted  by  the  Legislature  of  the  State  of  Texas: 
That  articlelOllb  of  the  Revised  Civil  Statutes  of  Texas,  as  amended 
by  chapter  14  of  the  acts  of  the  special  session  of  the  Twenty-second 
Legislature  be  amended  so  as  to  read  as  follows : 

Article  IGllb.  Any  person  desiring  to  sue  out  a  writ  of  error  be- 
fore the  Supreme  Court  shall  present  his  petition  addressed  to  said 
court,  stating  the  nature  of  his  case  and  the  grounds  upon  which  the 
writ  of  error  is  prayed  for,  and  showing  that  the  Supreme  Court  has 
jurisdiction  thereof;  and  the  petition  shall  contain  such  other  requi- 
sites as  may  be  prescribed  by  the  Supreme  Court.  The  petition  shall 
be  filed  with  the  clerk  of  the  Court  .of  Civil  Appeals  within  thirty 
days  from  the  overruling  of  the  motion  for  rehearing,  and  thereupon 
the  said  clerk  of  the  Court  of  Civil  Appeals  shall  note  upon  his  record 
the  filing  of  said  application,  and  shall  forward  to  the  clerk  of  the 
Supreme  Court  the  said  application,  together  with  the  original  record 
in  the  case,  and  the  opinions  of  the  Court  of  Civil  Appeals,  and  the 
motion  filed  therein,  and  certified  copies  of  the  judgments  and  orders 
of  the  Court  of  Civil  Appeals;  provided,  that  the  party  applying  for 
the  writ  of  error  shall  deposit  with  the  clerk  of  the  Court  of  Civil  Ap- 
peals a  sum  sufficient  to  pay  the  expressage  or  carriage  of  the  said 
record  to  and  from  the  clerk  of  the  Supreme  Court,  which  sum  shall 
be  charged  as  costs  in  the  suit.  If  the  writ  of  error  be  granted  and 
the  plaintiff  in  error  has  given  no  bond,  then  the  Supreme  Court 
in  granting  the  writ  shall  specify  what  bond  shall  be  given,  and  the 
plaintiff  in  error  shall  file  said  bond  in  the  trial  court,  to  be  approved 
by  the  clerk  of  said  court,  and  a  certified  copy  thereof  shall  at  once 
be  transmitted  to  the  Supreme  Court,  and  upon  the  filing  of  said 
certified  copy  the  clerk  of  the  Supreme  Court  shall  issue  the  citation 
in  error  as  may  be  prescribed  by  the  rules  of  the  Supreme  Court. 

Approved  May  6,  1895. 


INDEX. 


A 
Abatement.  PAGE 

Amendment  of  Pleas  in 320  -  321 

Definition   445 

Discontinuance,  and  Dismissal,   Chapter  XVIII 445  -  456 

Verification  of  Pleas  in 300 

Abatement,    Discontinuance,   and    Dismissal    for   Causes   Arising   After 

Suit  Brought.     Chapter  XVIII.. 445-456 

Definition  of  Terms 

Abatement,   Discontinuance,   Dismissal 445 

Abatement  by  Death  of  Parties - 445  -  450 

Early  Common  Law 445  -  440 

Early  Statutes 446 

Cases  Not  Within  Statute  of  1895 446 

Decisions  Before  Act  of  1895 446-447 

Statute  of   1895 447 

Effect  of  This  Statute 447-448 

Further    Statutory    Provisions 448  -  450 

Abatement  on  Dissolution  of  Corporation 450  -  452 

See  Dissolution  of  Corporations. 

Pendency  of  Another  Suit  as  Ground  for  Abatement 453 

Common  Law  Rule 453 

Texas  Rule 453 

State  and  Federal  Courts 453 

Insanity  of  Party  as  Ground  for  Abatement 453  -  454 

Discontinuance   454  -  456 

As   Between   Principal   Obligors 454  -  455 

As  Between  Principal  and  Sureties 454  -  455 

When  Discontinuance  May  Be  Made 455  -  456 

Accounts,  How  Plead .* 290 

Mutual  Are  Merged  by  Law 375 

Act  of  February  5,  1840 67  -    69 

Act  of  January  20,  1840 67  -    69 

Act  of  1895  as  to  Survival  of  Causes  of  Action 447  -  448 

Actions  Affecting  Personal  Property,  Parties  to 196  -  198 

When  Title  Is  Involved 190 

Partition    

Foreclosure  of  Liens 197 

Damage  to   197 

Actions  Concerning  Real  Property,  Parties  in 188  -  196 

For  Breach  of  Contract,  Joinder  of !•"•-  -  156 

For   Damage   to   Land 196 

For  Tort,  Joinder  of 166-158 

On   Official    Bonds 201-202 

To  Foreclose  Liens  on  Land 190  -  195 

See  Vendor's  Lien. 

To  Fpreclos"e  Mortgages  and  Deeds  of  Trust  on  Lands 195  -  196 

Action  to  Remove  Cloud,  Quasi  in  Rem 

To   Remove   Cloud 190 

Active  Jurisdiction 

Address 323 


494  INDEX. 

PAGE 

Administrators  as  Parties 174 

Continuation  of  Suits  by 449 

Venue  in  Suits  Against 219 

Admiralty  Cases,  Proceedings  in  Rem 37 

Admission  by   the  Defendant   by   Pleading  Not  Guilty   in   Trespass   to 

Try  Title    422-424 

Alienage,  Matter  of  Abatement 359 

Alien  Enemies  as  Parties 171  -  172 

Alien  Friends  as  Parties 171 

Allegata  and  Probata  Must  Correspond 266  -  270,  287 

Allegation  of  Capacity  in  Which  Suit  is  Brought 179  -  180 

Words  in   Slander 387  -  388 

Alternate  Writ  of  Mandamus 391  -  393 

Amendments  to  Pleadings 306  -  309 

Amendments,  Full  Discussion 309  -  321 

Purpose  of   309  -  310 

Designation  of  Different 309  -  310 

Each  Is  Substitute  for  Pleading  Amended 310 

Each  Must  Be  Complete  in  Itself 310 

Trial  Amendments   310 

Leave  of  Court  Necessary  to  Filing 310-311 

Notice  of ' 311 

In  Vacation   .   311 

Time  When  Amendments  May  Be  Made 312 

Setting  Up  New  Causes  of  Action,  Full  Discussion 311  -  316 

Classification  of    312  -  314 

When  Does  an  Amendment  Set  Up  a  New  Cause  of  Action 314  -  316 

Tests  in  the  Early  Cases 314 

Departure  in  the  Later  Cases 315 

Suggested  Change  in  the  Formula 315  -  316 

Amendments  of  Verified  Pleadings 317  -  321 

Attachments    317  -  319 

Where  Petition  and  Affidavit  in  Separate  Instruments 317  -  318 

Where  Petition  and  Affidavit  in  One  Instrument 318  -  319 

Injunctions 320 

Verified    Defensive    Pleadings 320 

Pleas   in   Abatement 320  -  321 

Amount  irr  Controversy,  Jurisdiction  Fixed  by 120  -  128 

See  District  Court  Jurisdiction. 

District  and  County  Court  Provisions 120 

Answer,    Generic   Term 306 

Meaning  of  in  Our  System 255 

See  Defendant's  Original  Answer. 

Appeals  From  Commissioners  Court 145 

From  Justice's  Court 145 

Appellate  Jurisdiction    29 

Df  District  Court 139-141 

Argumentativeness   292 

Assignees  for  Benefit  of  Creditors  as  Parties 172 

Assignee  from  Vendor  of  Land,  Remedies  of 191  -  192 

Assignment  for   Benefit  of   Creditors,   Parties 172  -  173 

Associations,  Venue  in  Suits  Against 232 

Attachments.  Amendment  of  Petition 317  -  319 

Cross  Action  for  Damages 377  -  379 

Quasi  in  Rem 43  -    44 

Suits  for  Damage,  Venue  in 220 

Trial   of  Right  of  Property  Under,  Jurisdiction 115-116 

Attorneys  at  Law 94 

Attorneys'  Fees  122 


INDEX.  495 

B 

PAGE 

Blending  of  Law  and  Equity 71 

Bond  for  Title,  Damages  for  Breach  of Ill 

Breach  of  Contract,  Joinder  of  Actions  for .  152  -  150 

Breaches  of  Contract  Outside  of  the  State 30 

Burden  of  Proof  in  Plea  in  Abatement 217 

C 

Capacity  in  Which  Parties  Sue  and  Are  Sued  Must  Be  Alleged 179  -  180,  324 

Capacity  to  Contract  Need  Not  Be  Alleged 271 

Carriers — Parties  to  Actions  Against 202 

Cases  Not  Committed  to  Special  Court,  Jurisdiction  of 144 

Cases  as  to  Fullness  in  Pleading 266  -  270 

Cause  of  Action,  Full  Discussion 324  -  347 

See  Plaintiff's  Original  Petition. 

Joinder  and  Misjoinder  of 147  -  159 

Locality  of  as  Fixing  Venue 233  -  234 

Survival  of 245  -  248 

Certainty  in  Pleading,  Full  Discussion 278  -  292 

See  Pleadings,  General  Principles. 

Oertiorari   138 

Charitable  and  Social  Organizations  as  Parties 178 

Cities  and  Towns  as  Parties 162 

Citizens  of  Texas   as   Parties 170 

Citizens  of  Other  States  as  Parties 170-171 

Citation,   Prayer   for 347 

Civil  Law  in  Texas 48 

Civil   Liberty .  1  -      3 

Claims  Applied  to  Each  Other  by  Agreement,  Cross- Actions 375 

Applied  to  Each  Other  by  Law,  Cross-Actions 375 

Disconnected    but    Similar,    Cross^Actions 375  -  376 

Dissimilar  but  Connected,  Cross-Actions 377  -  379 

Clerk  of  the  Court 93  -    94 

Combinations  of  Natural  Persons  as  Parties 176  -  179 

Comity 29 

Commission  of  Appeals 81  -    83 

Common  Law. 

Self  Help    3 

Introduction   of    48  -    66 

As  to  Juries  and  Evidence f>8 

Under  Provisional  Government 58 

As  to  Joinder  of  Parties 186 

Apply  as  to   Plaintiffs 199 

Do  Not  Apply  as  to  Defendants 199 

As  to  Duplicity  in   Pleading 295-296 

Rules  as  to  Mandamus 388  -  390 

Practice  in  Mandamus 393 

Abatement  by  Death  of  Parties .. 445  -  446 

Community  Administration,  Parties  in  Suits  Affecting 17 

Commencement,  in  Petition 324 

Commissioners  Court.   District  Court  Control   Over 143 

Compensation,  Civil  Law  Term 375 

Concurrent  Jurisdiction 28 

Confession  and  Avoidance,  When  Evidence  is  Inadmissible 366  -  367 

Consideration 334-340 

Rules  as  to  Pleading 334-340 

Civil  and  Common  Law  Views 334  -  337 

Contracts  of  the  Law  Merchant,  Presumption  of 335 

Contracts  Under   Seal   Import 336 

Common  Law  Contracts  Not  Under  Seal  Do  Not  Import 336-337 

Texas  Statutes  and  Decisions 337-340 


496  INDEX. 

Consideration — continued.  PAGE 

Want  or  Failure  of  Must  Be  Plead 369 

Verification   of    Such   Plea 367 

Consolidation  of  Suits 159 

Contested  Elections,  Jurisdiction 128 

Contracts. 

Extraterritorial    Breach   of 30 

Parties  to  Suits  on 198  -  200 

Joint,  Joint  and  Several,  and  Several  Contracts 198  -  199 

Common  Law  Rules  Applied  to  Parties   Plaintiff x. 199 

Common  Law  Rules  Do  Not  Apply  to  Parties  Defendant 199 

Principal  Obligors,  Joinder  of 199  -  200 

Sureties  and  Others  Secondarily  Liable,  Joinder  of 200 

Venue,  Fixed  by 219 

Incapacity  of  Parties  and  Illegality  as  Defenses,  Pleading 271 

Allegations  in  Suits  on s 333  -  341 

See  Plaintiff's  Original  Petition. 

Essentials  of   333  -  334 

Of  the   Law  Merchant 335 

Under  Seal  336  -  340 

Parol  336  -  340 

Description  of  in   Pleading 341 

Breach  of  Condition  Subsequent  Must  Be  Plead 369 

Discharge  Must  Be  Plead 369 

Contributory  Negligence,  When  Plaintiff  Must  Negative 273  -  346 

Must   Be  Plead   by  Defendant 369 

Conversion,  Allegation  of 264 

Corporations. 

Domestic,  as  Parties 178 

Foreign,  as  Parties 178  -  179 

State's  Right  to  Exclude  From  Courts 178  -  179 

Venue  in  Suits  to  Forfeit  the  Charter 231 

Forfeiture  of  Charter 397 

See  Quo  Warranto. 

Dissolution   of    450  -  452 

See  Dissolution  of  Corporation. 

Costs  in  Proceedings  Quasi  in  Rem 47 

Cotenants  as  Plaintiffs  in  Trespass  to  Try  Title 416-417 

Counties  as  Parties 161 

Venue  in  Suits  Against 231 

Counts  and  Paragraphs  in  Pleadings 325  -  327 

Consistency   Between   Different  Counts   Not  Required 326 

Consistency  Within  the  Same  Count  Is  Required 326 

Singleness  Not  Required 326 

Presentation  of  the  Case  by  Paragraphs 326  -  327 

County  Courts  Under  Republic 64 

Under  Constitution  of   1876 81 

Under  Amendments  of  1891 83 

Terms  of   95 

County  Courts,  Jurisdiction  of 98  -  101,  144  -  147 

Constitutional  Provisions 98  -    99 

Statutory   Provisions    ". 100  -  101 

Detailed  Consideration 144  -  147 

Amount  in  Controversy .- .  .  120  -  128,  144  -  145 

Trial  of  the  Right  of  Property 115-116 

Suits  Involving  Title  to  Land,  Cases  on 105  -  114 

Result  of  These  Decisions 113  -  114 

See  Trial  of  Title  to  Land. 

Issuance  of  Writs,  Full  Discussion 130  -  139 

Mandamus  and   Injunction 130  -  138 

Certiorari   138 

Other  Writs   .  139 


INDEX.  497 

County  Courts — continued.  PAGE 

Eminent  Domain   146 

Appeals  from  Justice's  Court 145 

Appeals  from  Commissioners  Court 145 

County  Judge,  Election  and  Qualifications 87 

Counter   Claim,   See   Cross- Action 371  -  382 

See  Defendant's  Original  Answer,  Cross-Action. 
Court. 

Definition    5 

Analysis  of  Definition 6  -      9 

Powers  of,  Limited  by  Time  and  Place 9  -    33 

Usual  Officers  of 10 

Powers  Ordinarily  Conferred  on 21 

Illustrations  of  Limited  Powers 31 

Powers  of  Must  Be  Invoked 247 

Can  Act  Only  on  Matters  Presented  to  It 247 

Each  Party  Has  Right  to  Be  Heard  Before 247 

Court  of  Appeals  Under  Constitution  of  1876 81 

Courts   of    Civil    Appeals 82 

Courts  of  Criminal  Appeals 82 

Crime,  Venue  of  Suits  for 221 

Cross-Action.     • 

See  Defendant's  Original  Answer,  Cross-Action 371  -  382 

Act  of  1840  Allowing  Discounts  and  Set-Offs 372  -  373 

Act  of  1879  Regarding 373  -  374 

Practice  Prior  to  the  Statutes 374, 

Classification  of  Claims  Embraced  in  the  Statutes 374  -  380 

In  Cases  Not  Embraced  in  the  Statute 380  -  381 

Pleadings   in    " 381 

Recapitulation  of  Rules  in 381  -  382 

Effect  of  Discontinuance  of  Plaintiff's  Case  on 379  -  456 

For  Amount  Above  Jurisdiction 127 

D 

Damages. 

Allegation  of  in   Libel 385 

Cross- Action  for  in  Attachments 377  -  379 

For  Breach  of  Bond  for  Title.  Jurisdiction Ill 

General   and   Special 347 

How  Plead    277-278 

General  and  Special  Distinguished 377 

Pleadings  When  Both  Actual  and  Exemplary  Are  Sought 277  -  278 

In  Attachment  and  Sequestration,  Venue 220 

In  Trespass  to  Try  Title 418-419 

Death. 

Injuries  Resulting  in.   Parties 203 

Of  Defendant  Giving  Venue,  Effect  of 218 

Of  Partner  Not  Ground  for  Abatement 449 

Of   Parties,    Abatement   by 445-448 

Oi  Party  Between  Verdict  and  Judgment,  Effect  of 450 

Of  Sole 'Plaintiff  or  Defendant,  Effect  of 448-450 

Default  of  Public  Officers,  Venue 220 

Defects  of  Substance  in  Pleading 256-257 

Defects  in  Form  in  Pleading 256  -  257 

Defendant. 

Connection  of,  With  Wrongful  or  Omission 344  -  345 

By  Personal  Act  or  Omission 344 

By  Act  or  Omission  of  Some  Other  for  Whom  He  Is  Responsible.  .  .  .  344  -  345 

Legal  Status  as  Affecting  Liability 343  -  344 

Wrong  by.  Must  Be  Alleged  in  the  Petition 342-346 

32 — Pleading 


498  INDEX. 

Defendants.  PAGE 

In  Suits  on  Joint  Contracts 199  -  200 

Residing  in  Different  Counties,  Venue 217  -  219 

Whose  Residences  Are  Unknown,  Venue 216  -  217 

Defendant's  Original  Answer,  Chapter  XIV,  Full  Discussion 349  -  382 

General  Nature   of  Defenses 349 

Statutes    Governing    350  -  351 

Rules    of   Court    Concerning ' 352  -  353 

.Number  of  Defenses  and  Order  of  Presenting 353 

Must  Be  Presented  in  Due  Order 353 

Due  Order  Between  Dilatory  Pleas  and  Pleas  in  Bar 353 

Due  Order  in  Joinder  of  Issues  of  Law  and  of  Fact 353 

Distinction  Between  Dilatory  Pleas  and  Pleas  in  Bar 354 

Dilatory  Pleas  Precede  Pleas  in  Bar 354 

Dilatory  Pleas,  Full  Discussion 355  -  363 

Due  Order   in 355-356 

Pleas  in  Abatement -356  -  358 

Disability  of  Parties 356-357 

Disability  as  Matter  of  Abatement  and  as  a  Bar 356  -  357 

Foreign  Corporations  as  Parties 357 

To  the  Writ 357 

To  the  Petition 357-358 

Pleas  of  Personal  Privilege 358 

Certainty  in  Dilatory  Pleas ; 358 

Need  Only  Negative  Matters  Pertinent  to  Petition 358 

Verification  of 359 

Enumeration  of  Some  Matters  in  Abatement 359 

Practice  When  Plea  in  Abatement  Is  Filed 360-363 

Hustrative  Cases    .' 360-362 

Discussion  of  the  Cases 362  -  363 

Pleas    in    Bar 363-371 

Due  Order  in 363 

Demurrers    363  -  365 

Practice  at  Common  Law 364 

Texas  Practice 364 

General   and   Special 364 

Rules   of   Construction  Under   Each 365 

General  Denials    365  -  367 

What  Plaintiff  Must  Prove  to  Overcome 365 

What  Defendant  May  Prove  Under 366 

Distinction  Between   and   Common  Law  General   Issue 367 

Special  Denials  367-368 

Purpose  and   Effect  of * 367 

When   Required    367 

When  Advisable    368 

Pleas  in   Confession  and  Avoidance 368  -  370 

Nature   of    368 

Necessity  for   368 

Form  of    368-369 

Certainty   Required    in 369 

Consistency   in    ." 369 

Some  of  the  Most  Frequent  Examples  of 369 

Limitation.    Plea    of 369  -  370 

Must  Be  Specially  Plead 370 

By    Special    Exee'ption 370 

By  Plea  to  Merits 370 

Reply  to  by  Plaintiff 370 

Eftoppeh   Nature   of 370-371 

Cross-Actions 371  -  382 

Generally    .' 371 

First  Texas   Statute 372 

Act  of  1879 .  .  373 


INDEX.  499 

Defendant's  Original  Answer — continued.  PAGE 

Law  Prior  to  the  Statute 374 

Claims  Embraced  in  the  Statute 374  -  380 

Classification  of 374 

Group  One,  Claims  Applied  to  Each  Other  by  Law 375 

Group  Two,  Claims  Applied  to  Each  Other  by  Agreement..  375 

Group  Three,  Claims  Disconnected  but  Similar 375  -  376 

Group   Four,   Claims   Dissimilar   but   Connected 377-379 

Group  Five,  Claims  That  Can  Not  Be  Considered  Together .  .  380 

Cross- Actions  Not  Strictly  Within  the  Statute 380  -  381 

Rights  in   Reni 380  -  381 

Under   Equity   Jurisdiction 381 

Rules  of  Pleading  in  Cross- Action 381 

Recapitulation  as  to  Cross- Actions 381  -  382 

Defenses. 

Available  Under  Plea  of  Not  Guilty  in  Trespass  to  Try  Title 425-426 

General  Nature  of : 349 

Joinder  of  and  Order  of  Presentation 353 

Defensive  Matters,  When  Must  Be  Negatived 273,  346 

Definition  of  a  Motion 435 

Demand  in  Mandamus 393 

Demurrer. 

Effect  of   252-253 

General,  Does  Not  Reach  Defect  of  Form 304 

General   Discussion 363  -  365 

Special,  Purpose  of 304 

Departments  of  Government 4  -      5 

Different  Instruments  of  Pleading  and  Their  Designations 306  -  307 

Their  Relation  to  Each  Other. 306-322 

Petition  and  Answer,  Generic  Terms 306 

Several  Instruments  of  Pleading  and  Order  of  Filing 306  -  307 

Diagram  Showing 308 

Different   Classes   of  Pleadings 309 

Original   Pleadings,  Amendments,  and   Supplemental  Pleadings,  Dis- 
tinctions Between  309 

Amendments,  Full  Discussion 309  -  321 

Supplemental  Pleadings 321-322 

Diagram,  Showing  Different  Classes  and  Instruments  of  Pleadings ....  308 

Dilatory  Pleas  and  Motions,  When  to  Be  Heard 443 

Dilatory  Pleas  Distinguished  from  Pleas  in  Bar 354 

Direct  and  Proximate  Cause 246 

Disabilities  of  Plaintiff  to  Avoid  Limitation 434 

Discontinuance. 

Definition   .' 445 

By  Plain-till',   Effect  on   Cross- Action 456 

Articles  1203,  1204,  1256,  1257,  and  1259  Considered 154-155 

.  Common  Law  Rule  as  to  Joint  Defendants  Abolished 454  -  455 

Rules  as  Between  Principal  and  Surety 454  -  455 

Evidence  of  Suretyship 455 

Discount.     See  Cross- Action 371  -  372 

See  Defendant's  Original  Answer 

Disability  of  Plaintiff  to  Avoid  Limitation 370 

Dismissal,  Definition ., 445 

Dissolution  of   Corporations,   Ground   for   Abatement 450  -  453 

How  Dissolution   Affected 450-451 

Common  Law  Rule  as  to  Result •  451 

Texas  Rule 451 

Texas  Statute  Does  Not  Apply  to  Foreign  Corporations 

Appointment  of  Receivers 451 

Rules  as  to  Railroad  Companies 452 

See  Quo  Warranto 


500  INDEX. 

District  Court.  PAGE 

Under  the  Republic 63 

Under  Constitution  of  i845 72 

Under  Constitution  of  1870 81 

Place  of  Holding 94 

Terms  of,  Regular  and  Special 95 

District  Court.     Jurisdiction  of 101  -  144 

Suits  in  Behalf  of  the  State ' 101-103 

Penalties   102 

Forfeitures    102 

Escheats    103 

Suits    for    Divorce 103 

Slander  and  Defamation 105 

Trial  of  Title  to  Land 105-114 

Land    Denned ' 106-107 

Trial  of  Title 107-114 

Decisions    Regarding 107  -  113 

Result  of  the  Decisions 113-114 

Suits  to  Foreclose  Liens  on  Land 114  -  115 

Trial  of  the  Right  of  Property 115-116 

Result  of  the  Decisions  Regarding 116 

Suits,  Complaints,  and  Pleas 116  -  117 

No  Distinctions  Between  Law  and  Equity 117  -  120 

Jurisdiction  Fixed  by  Amount  in  Controversy 120  -  128 

District  and  County  Court  Provisions 120 

What  Is  Amount  in  Controversy 120  -  121 

Interest 121-122 

Attorneys'    Fees 122 

Joinder  of  Causes  of  Action  to  Make  Jurisdictional  Amount .    123  -  128 

Remittitur  of  Part  of  Claim  to  Bring  Within  Jurisdiction 126 

As  Affecting  Right  to  Cross-Action 127 

Cross  Action  for  Amount  Above  Jurisdiction .  . 127 

Foreclosure  of  Liens  on  Personal  Property. .*.  .  127 

Fraudulent  Allegations  to  Give  Jurisdiction 128 

Contested    Elections 128 

Under    Former    Constitution 128 

Under  Present  Constitution 129 

Power  to   Issue   Writs . 129-139 

Habeas   Corpus 130 

Mandamus   and   Injunction .- 130  -  138 

Mandamus  Denned 130 

Injunction   Denned 130  -  131 

Construction  of  Corresponding  Clauses  in  Constitution  of  1876. 

Change   in   Present   Constitution 132  -  139 

Decisions  Construing  Present  Constitution .- 131  -  139 

Result  and  Effect  of  Decisions 136-138 

All  Writs  Necessary  to  Enforce  Their  Jurisdiction 139 

Certiorari     138 

Appellate  Jurisdiction  in  Probate  Matters 139  -  141 

No  Original  Jurisdiction  in  Probate  Matters 139  -  141 

In  Suits  Affecting  Estates 140-143 

Suits  by  Heirs 140 

Clause  Regarding  Original  Jurisdiction  in  Probate  Matters  Not  Self- 

Operative 141-142 

Probate  Jurisdiction,  What  Is 141 

Control  Over  Commissioners  Court 143 

General  Jurisdiction  Over  All  Cases  Not  Committed  to  Other  Courts. .  .  144 

District  Judge,  Election  and  Qualifications  of 87 

Divorce,  Proceedings  in  Rem 

Different  Doctrines  Regarding.  .  .• 39 

Venue  in  Suits  for 230 

Dormant  Partners  and  Surviving  Partners  as  Parties 177  -  178 


INDEX.  501 

Due  Order  of  Pleading.  PAGE 

As  Between  Dilatory  Pleas  and  Pleas  in  Bar 353  -  354 

As  Between  Joinder  of  Issues  of  Law  and  Fact 253 

Among  Dilatory  Pleas 355 

Among  Pleas  in  Bar 363 

See  Defendant's  Original  Answer. 

E 

Easements,  Damages  to,  Jurisdiction 108  -  109 

Ejectment,   Action  of 405  -  406 

Eminent  Domain,  Jurisdiction  in 146 

Endorsement  of  Petition  in  Trespass  to  Try  Title 348 

Equity  Rules  as  to  Joinder  of  Parties 187 

Escheats,    Jurisdiction 103 

Estates,  Jurisdiction  of  District  Court  Over 141  -  145 

Estoppel,  Pleas  of 370 

Evidence  Distinguished  from  Fact  in  Pleading 264  -  266 

In  Confession  and  Avoidance 366  -  367 

In  Rebuttal 366-367 

Objection  to  for  Want  of  Pleading 303 

Of  Facts  Not  Plead  Not  Admissible 272 

Of  Words  Used  in  Slander 388 

Exclusive  Jurisdiction 28 

Executions,  Trial  of  Right  of  Property  Under 115  -  116 

Executive  Department  of  the  Government 5 

Executive   Officers,   Liability   of 169 

Executive   Ordinance 60 

Executors    as    Parties 174 

Continuation   of   Suits   by 449 

Venue  in  Suits  Against 219 

Executed  and  Executory  Sales  of  Land 190  -  191 

Executory   Sales,   Vendor's   Remedies   in 191  -  192 

Express  Contract  Will  Not  Sustain  Allegation  of  Implied 394 

F 

Facts  Not  Alleged  Can  Not  Be  Proved 272 

Federal  Courts,  Suits  Pending  in,  as  Lis  Pendens 453 

Federal  Government,  a  Party 162 

First  Supplemental  Answer 256 

First   Supplemental   Petition 256 

Five  Years  Statute  of  Limitation 427 

Pleading  as  to  Forged  Deeds 427 

Fixtures 406  -  410 

Foreclosure  of  Liens,  Joinder  With  Trespass  to  Try  Title 420 

Foreclosure  of  Liens  on  Personal  Property,  Jurisdiction  Over 127 

Foreclosure  of  Mortgages  or  Liens,  Venue 225 

Foreclosure  Suits,  Quasi  in  Rem 46 

Foreign  Corporations  as  Parties 178  -  179 

Venue  in  Suits  Against 235 

Foreign  Laws  Must  Be  Plead  as  Facts 270 

What  Are    270 

Forfeitures,  Jurisdiction   102 

Forfeiture  of   Corporate   Charters 397 

Venue  in    : 231 

See  Quo  Warranto. 

Form,  Defects  of,  in  Pleadings 304 

Form  of  Motions 437 

Fraud,  Allegation  of 264-369 

Venue  in  Suits   Based  on 220 

Fraudulent  Allegation  of  Amount  in  Controversy,  Matter  of  Abatement.  360 


502  INDEX. 

PAGE 

Fraudulent   Allegations    to   Give   Jurisdiction 128 

Fraudulent  Joinder  of  Party  to  Give  Venue 218 

G 

Garnishments,  Quasi  in  Rem 45 

General  Denials 365  -  366 

Effect  of  in  Libel  and  Slander 386-387 

In  Mandamus 392 

Not  Limited  by  Plea  in  Confession  and  Avoidance 368  -  369 

Goo'd  Faith,  Allegation  of 264 

Government  Ad  Interim 59  -  61 

Government,  Departments  of 4  -  5 

Grand  Jury,  What  Is • .  90 

Guardian  of  Insane  Person  as  a  Party 453  -  454 

Guardians  of  Infants  and  Others  as  Parties 176 

Guardians,  Venue  in  Suits  Against 219 

H 

Habeas   Corpus 130 

Habitual  Drunkards  as  Parties '  176 

Hearing   Motions 44"2  -  444 

Heirs. 

As   Parties  in  Suits  Touching  Estates 174  -  175 

Continuation  of   Suits   by 449 

Suits  by 140 

Homestead,  Jurisdiction  of  Suits  Involving 108  -  109 

Houses,  Jurisdiction  in  Suits  Concerning 107  -  109 

Husband  as  Party  in  Suit  Involving  Wife's  Rights 175  -  176 

I 

Illegality,  When  Must  Be  Plead  as  a  Defense 371 

Implied  Contract  Will  Not  Sustain  Allegation  of  Express 294 

Improper  Parties 184 

Improvements  in  Good  Faith 428  -  433 

See  Trespass  to  Try  Title,  Improvements  in  Good  Faith. 

Incapacity  Must  Be  Specially  Plead  as  a  Defense 271 

Independent  Defensive  Matter  Must  Be  Plead 368-369 

Need  Not  Be  Anticipated 272-273 

Infants  as  Parties 176 

Information  in  the  Nature  of  Quo  Warranto 394  -  402 

See  Quo  Warranto. 

Inheritances,  Suits  Concerning,  Venue  in 225 

Injunction    129-139 

Amendment  of  Pleadings 320 

See  District  Court,  Jurisdiction  of. 

Injuries  Resulting  in  Death,  Actions  for,  Parties  to 203 

Death  of  Interested  Party 450 

Innuendoes,  Use  of  in  Libel  and  Slander 384 

In  Pe'rsonam,  See  Proceedings  in  Personam 34-36 

In  Rem,  See  Proceedings  in  Rem 37-39 

Insurance  upon  Homestead,  Jurisdiction 108 

Insane  Persons  as  Parties 176,  453  -  454 

Insanity  as  Ground  for  Abatement 453  -  454 

Insurance  Companies,  Venue  in  Suits  Against 235 

Interest     121-122 

Intervenors    185,  208  -  210 

Rules  Governing  Right  to  Intervene 208  -  209 

Manner  of  Intervening 209 


INDEX.  503 

Intervenors — continued.  PAGE 

Notice  of  Intervention 209 

Pleading  by 305 

Effect  of  Previous  Actions  in  the  Cases,  on 209  -  210 

Position  in  the  Suit 210 

Issues. 

Combination  of  at  Common  Law 252 

Combination  of  in  Texas '. 252  -  253 

Definition   . 19 

.   Distinction  Between  Issues  of  Law  and  of  Fact 251 

Hearing,  Adjudging   Issues 20 

How  Joined 252 

In  Trial  of  the  Right  of  Property 403-404 

J 

Joinder  of  Causes  of  Action 147  -  159 

Multiplicity  of  Suits  to  be  Avoided 147 

Illustrative  Cases 147  -  151 

Of  Actions  for  Breach  of  Contract  and  Tort 151 

Of  Actions  for  Breach  of  Contract,  Rule t         152 

Exceptions  and  Limitations  on   Exceptions 152  -  155 

Statutory  Rule  as  to  Official  Bonds 156 

Of  Actions  for  Torts 156-158 

Of  Causes  of  Action  to  Make  Jurisdictional  Amount 123  -  128 

Joint  and  Several  Rights,  Allegation  of 287 

Joint  Contracts  and  Interests,  Survivorship 449 

Joint,  Joint  and  Several,  and  Several  Contracts 198  -  199 

Joint  Obligees  as  Plaintiffs 454  -  455 

Joint  Obligors  as  Defendants 454  -  455 

Joint  Stock  Companies  as  Parties 178 

Joint  Stock  Companies,  Venue  in  Suits  Against 232 

Joint-tenants.  Death  of  One  in  Suits  by 449 

Joinder,  Misjoinder  and  Nonjoinder  of  Parties 181  -  211 

See  Parties,  Joinder  of. 

Judge,  The    87  -    90 

Functions   of 87 

Disqualifications  of 88  -    89 

Selection  of  Special,  for  Term 89 

Selection  of  Special,  for  Particular  Case 89 

Ex  Officio,  Duties  of 88 

Distinguished  from  the  Court 7 

Judgment. 

Actions  Concerning,  Parties  to 201 

Effect  of,  in  Attachment 44 

•     In   Quo   Warranto 401  -  402 

Must  Be  Based  upon  Pleadings 266 

Venue  in  Suits  to  Enjoin 230 

Judicial   Department 5 

Judicial  Function 1  -    13 

Definition   of 5 

Judicial  Officers,  Liability  of 169 

Jurisdiction  ^as   Affecting 169 

Judicial  Power* 

Bases  of  Distribution  of,  in  Federal  Courts 22 

Bases  of  Distribution  of,  in  Texas  Courts 22 

Difference  Between  Territorial  Jurisdiction  and  Venue 22 

Distribution  of   11,  21  -    23 

Limitations   on 21 

Three  Aspects  of 18  -    20 


504  INDEX. 

Judicial  System.  PAGE 

Definition    49 

Of  Coahuila  and  Texas 52  -    57 

Under  Republic   62  -    66 

Under   Constitution   of    1845 70  -    75 

Under  Constitution  of  1869 80 

Under  Constitution  of  1876 81  -    82 

Under  Constitution  of  1891 82  -    86 

Various  Courts  Comprising 82  -    83 

Changes  by  These  Amendments 83 

Judicial  System  of  Texas,  Development  of,  Chapter  IV 48  -    86 

Civil   Law   in   Texas 48 

Common  Law,  Introduction  of 48  -    49 

Judicial    System,   What   Is 49 

Texas,  Early  Conditions  in 49 

Texas  as  a  Mexican  State 50  -    57 

First  State  Judiciary  Act 50 

Judicial   System  of  Coahuila  and  Texas 52 

Jury,   First  Mention   of 52 

Jury,  First  Texas  Statute 53 

Chambers  Jury  Law 54  -    57 

Judicial  System  Under  Decree  277 54  -    55 

Jury  Under  Decree  277 55  -    56 

Pleading   Under   Decree   277 56 

Revolutionary  Period   57  -    61 

Provisional  Government 57  -    59 

Judiciary  Articles  Under 57  -    58 

Common  Law  Under 58 

Common  Law  Juries  and  Evidence,  Introduction  of 58 

Government  Ad  Interim 59  -    61 

Declaration  of  Independence 59 

Executive   Ordinance 60 

National  Character  of 60 

Defects  in  Judicial  Department 61 

Republic    62  -    70 

Judicial   System  Under 62  -    66 

Supreme  Court 62 

District  Court  63 

County   Court 64 

Justice's   Court 65 

Partial   Introduction  of   Common   Law 66 

Pleadings  Under    66  -    70 

First  Act  of  Congress  on 67 

Early  Cases  on 67 

Act  of  January  20,  1840 67 

Act  of  February  5,  1840 67 

Construction  of  These  Acts 68  -    69 

Act  of  January  20,  1840 67  -    69 

Act  of  February  5,  1840 67  -    69 

State 70  -    86 

Judicial  System,  1845 70  -    75 

Supreme   Court 70 

District  Courts 70 

Inferior  Courts 73 

Legislative  Power  to  Change  Jurisdiction 73  -    75 

Pleading  Under  This  Constitution 75  -    79 

Statutes  Regarding 75 

Cases   Construing    76  -    79 

Law  and  Equity,  Blending  of 71 

Judicial  System,  1869 80 

Judicial  System,   1876 81  -    82 

Supreme   Court 81 


INDEX.  505 

Judicial  System  of  Texas — continued.  PAGE 

Court  of  Appeals 81 

District  Courts 81 

County  Courts  .  .  .  .' 81 

Commissions  of  Appeals 81  -    82 

Judicial  System,  1891 82  -    86 

Various  Courts  Comprising 82  -    83 

Changes  by  These  Amendments 83 

Legislative  Authority  to  Change  Jurisdiction  of  the  Courts.....  83-    86 

Supreme  Court,  1891 

Court  of  Criminal  Appeals 82 

Courts  of  Civil  Appeals 82 

District  Courts • 83 

County   Courts 83 

Jurisdiction,  General  Discussion,  Chapter   II 14  -    32 

Definitions 14  -    19 

By  United  States  Supreme  Court 14 

By  Texas  Supreme  Court 14 

In  Ex  Parte  Lange 15  -    17 

By  Mr.  Black 17  -    18 

By  Author    18  -    19 

Judicial  Power,  Three  Aspects  of 18  -    20 

Hearing  Issues,  Adjudging  Issues,  and  Enforcing  Results 20 

Issues 19  -    20 

Definition   19 

Hearing,  Adjudging  Issues 20 

Parties,  Designation  of ' 19 

Courts,  Powers  Ordinarily  Conferred  on 21 

Illustrations  of  Limited  Powers 21 

Judicial  Power,  Distribution  of 21  -    23 

Limitations    on 21 

Bases  of  Distribution  in  Federal  Courts 22 

Bases  of  Distribution  in  Texas  Courts 22 

Difference  Between  Territorial  Jurisdiction  and  Venue 22 

Territorial   Jurisdiction 22 

Jurisdiction,  Classifications  of 23  -    29 

Potential  and  Active 23  -    24 

Over   Subject  Matter   and  Over   Person 24  -    27 

Sources  of  Potential  and  of  Active 24 

Consent  as  Source  of 24  -    27 

Potential  and  Active  Both  Essential 27 

Concurrent  and  Exclusive 28 

Original    and   Appellate 29 

Active  Jurisdiction   23  -    24 

Consent  as  a  Source  of 24  -    27 

Essential  to  Proper  Exercise  of  Judicial  Power 27 

Exclusive  Jurisdiction    28 

Appellate    Jurisdiction 29 

Jurisdiction. 

District  and  County  Courts,  Chapter  VI 96 

See  District  Court  Jurisdiction. 
See  County  Court  Jurisdiction. 

In  Quo  Warranto 399 

Over  Extraterritorial  Wrongs 29  -    33 

Jurors,   Qualifications   of 90 

Jury    93 

Commissioners  to  Select 92 

Definitions  of 90 

Functions   of 90 

Panel  for  the  Week 92-93 

Qualifications  of  Jurors 90 

Right  of  Trial  bv.  .  91 


506  INDEX. 

L 

Land.  PAGE 

Definition     106-107 

Description  of  in  Plea  of  Improvements  in  Good  Faith 433 

Description  of  in  Trespass  to  Try  Title • 415  -  416 

Venue  in  Ordinary  Suits  Concerning 226  -  229 

Comparison  of  Statutes  Past  and  Present 226 

What  Are  Suits  for  Recovery  of 226-228 

What  Are  Suits  to  Remove  Incumbrance 226  -  228 

Statute    Not    Mandatory , 228 

Rules  When  Parts  of  the  Land  Are  in  Different  Counties 228-229 

In  Suits  on  Warranty  of  Title 229 

In  Suits  for   Partition 225 

See  Trial  of  Title  to  Lands. 

Law,  Definition 2 

Laws  of  Both  State  and  Federal  Government  Binding  on  Courts  of  Each.  12  -    13 

Law  and  Equity,  Blending  of 71 

No  Distinction  Between,  in  Power  of  the  Court 117  -  120 

Law  Merchant,  Contracts  of,  Consideration 335 

Language,  Allegation  and  Proof  in  Libel 383  -  385 

Language.  Allegation  and  Proof  in  Slander 387  -  388 

Legal  Injury 346  -  347 

Remedies 347 

Damages 347 

Legal  Presumptions  in  Libel  and  Slander 386  -  387 

Legal  Process,  Venue  in  Suits  for  Abuse  of 223  -  224 

Legal  Rights  and  Duties 328-333 

Definition   328-329 

Depend  on  States  of  Fact 329 

Three  General  Classes  of  Facts 329 

Legal  Status  of  Defendant  as  Affecting  Liability 343  -  344 

Legal  Wrong,  How  May  Be  Committed 342 

Legality    of    Contract    Need    Not    Be    Plead 271 

Legislative  Authority  to  Change  Jurisdiction  of  Courts. 

Under  Former  Constitutions 73  -    75 

Under  Amendments  of  1891 83  -    86 

Legislative  Department  of  Government 5 

Legislative  Officers,  Liability  of 168 

Libel. 

Pleadings  by  Plaintiff 383-385 

Language,  How  Alleged 383  -  384 

Innuendoes   384 

Falsity  of  Statement  Must  Be  Alleged 385 

Rules  as  to  Privileged  Statements 385 

Damages   385 

Pleadings  by   Defendant 385  -  387 

Language    385  -  386 

Effect  of  General  Denial 386 

Truth  as  a  Defense,  How  Alleged 386-387 

Liens,  Foreclosure  of,  Quasi  in  Rem 46 

On  Personal  Property,  Jurisdiction 127 

Venue  in 225 

Limitation. 

Against  New  Cause  of  Action  Set  Up  by  Amendment 313 

A  Title 422 

Must  Be  Specially  Plead 369-370 

See  Defendant's  Original  Answer. 

In  Trespass  to  Try  Title 426-428 

Limited  Partnerships  as  Parties 178 

Liquidated  and  Unliquidated  Claims,  When  May  Be  Offset 377-379 

Lis   Pendens 453 

Local  Actions.  Jurisdiction  Over 30 

Logical  Arrangement  of  Pleadings 301  -  302 


INDEX.  507 


PAGE 

Malice,   Allegation   of  .............................................  264 

Mandamus. 

General    Discussion  .............................................   388-390 

Common  Law  Rules  Not  Fully  Applicable  .........................  390 

Purpose  of  Writ  in  Texas  .......................................  390 

Ministerial  Acts  and  Acts  Involving  Official  Discretion  ..............  391 

Right  Must  Be  Clear  ............................................  391 

Parties    .......................................................   391-392 

No  Other  Adequate  Legal  Remedy  ...............................  391 

Verification  of  Petition  ..........  "  ................................  391 

Certainty   in   Pleading  ..........................  ................    391-392 

General  Denial    .....................................  ............  392 

Citation    ......................................................  392 

Alternate   Writ  ................................................  393 

Demand  as  Condition  Precedent  ..................................  393 

Jurisdiction   Over  ..............................................    129-139 

See  District  Court,  Jurisdiction  of. 
Parties  in  ......................................................  200 

Venue   in    ____  '.  ................................................  231 

Marginal  Venue  in  Petition  .......................................  323 

Marriage  of  Female  Party,  Effect  Upon  Pending  Suit  ................  450 

Married   Women   as   Parties  .......................................  175 

Venue  in   Suits  Against  ........................................  215 

Matters  *6f  Defense,  Combination  of  ................................   252  -  253 

Ministerial  Acts  and  Acts  Involving  Official  Discretion  ...............  167 

Ministerial  Duty,  Definition  ...........................  ,  ............ 

Misdescription  of  Written  Contracts  in  Pleadings  ...................   284  -  286 

Misjoinder  of  Causes  of  Action,  Practice.  ...  ........................  158 

See  Joinder  of  Causes  of  Action  '    ,  j 

Misnomer,  Matter  of  Abatement  .................................... 

Mortgages,  Foreclosure,  Venue  ..................................... 

Motions,  Chapter  XVII  ......................  »  .....................   435  -  < 

Motions  and  Pleadings  Contrasted  .................................  435 

Definition  and   Discussion  ..................................... 

What  May  Be  Accomplished  by  ................................. 

Difference  Between  Motion  and  the  Ground  on  Which  Based  ....... 

Forms  of  Motions  ..............................................   437  -  438 

Oral    .......................................................  437 

Written   ....................................................   437-438 

Fullness  and  Certainty  ......................................   437-438 

Form    .............  *  ......................................  437 

Different  Kinds  of  ..............................................   438-440 

Notice  of  Motions  ............................  :  .  .  .  .  ..............   440-442 

In  Case  Pending  ..............................  '.  ..............   440  -  441 

In  Case  Not  Pending  .........................................   440-441 

Statutes  as  to  .........................................  .......  440 

How    Given  ..................................................   440  -  441 

Who  Must  Be  Notified  .......................................  441 

Time  and  Manner  of  Hearing  ....................................   442  -  444 

Statutes  and  Rules  as  to  ......................................   442-443 

Effect  of  These  Statutes  and  Rules  ..............................  443 

By  Whom  Heard  ............................................. 

Testimony   in  ................................................ 

Decision  on  and  Record  of  .  .  .................................. 

.Multiplicity  of  Suits  to  Be  Avoided  ................................  147 

Illustrative  Cases    .  ...................................    147-151 


508  INDEX. 

N 

PAGE 

Names  of  Parties  Must  fee  Alleged  in  Petition 324 

Naturalization,    Proceeding   in   Rem 39 

Nature  of  the  Subject  as  Affecting  Certainty  in  Pleading 291  -  292 

Necessary    Parties 181  -  183 

Nonjoinder    of 204 

Negligence  as  a  Trespass,  Venue  Fixed  by 221  -  223 

How  Plead 288-290 

New  Cause  of  Action,  Amendments  Setting  up 311  -  316 

New   Parties    206-207 

Right  to  Make  by  Plaintiff   206-207 

Right  to  Make  by  Defendant   206-207 

Notice  to    207 

Next  Friend,  Suit  by 454 

Non-Resident  Defendants,  Venue  in  Suits  Against 216  -  217 

Non-Residents,  Venue  in  Suits  Between 213 

Not  Guilty,  Plea  of,  Trespass  to  Try  Title 420  -  426 

See  Trespass  to  Try  Title,  Defendant's  Pleading. 

Note,  Parol  Assignment  of 287 

Notice  of  Amendments 310  -  311 

Notice  of  Motions 440  -  442 

0 

Objections  to  Evidence  for  Want  of  Pleading *  303 

Objections  to  Nonjoinder  or  Misjoinder   203  -  205 

Nonjoinder  of  Necessary  Parties    204 

Nonjoinder  of  Proper  Parties 204  -  205 

Misjoinder   of  Parties 205 

Offense,  Venue  in,  Suits  for 321 

Officers  as  Parties   162-170 

Liability  of. 

When  Government  Has  No  P.ower  to  Authorize  the  Act 163  -  166 

When  Power  Not  in  Fact  Delegated  166 

When  Delegated  Power  Misused    166 

Legislative  Officers  168 

Executive  Officers   168 

Judicial  Officers    '. 169 

Jurisdiction  as  Affecting 169 

Ministerial  Acts  and  Acts  Involving  Official   Discretion 167 

Officers  Composing  a  Court  10  -    87 

Officers,  Proceedings  to  Oust 397 

See   Quo   Warranto. 

Suits  for  Fraud  and  Defalcation,  Venue 220 

Removal  Proceedings,  Venue 236 

Official  Bonds,  Parties  to,  Actions  on  201  -  202 

Official  Discretion,  Acts  Involving 167 

Omissions  in  Pleadings,  Cured  When 273  -  275  -  277 

Omissions    in    Pleadings,   When    Cured    by    Allegations    in    Subsequent 

Pleadings    303  -  304 

Oral  Motions    437 

Order  of  Filing  Different  Pleadings   306-307 

Original  Answer,  Amendment  of    310 

First  Pleading  by  Defendant    255  -  256 

Original  Jurisdiction   29 

Original  Petition,  Amendment  of  . 309 

First  Pleading  Filed  255 

Original  Pleadings  306  -  309 

Ownership,  Allegation  of 264 


INDEX.  509 


PAGE 

Paragraphs  in  Pleading 325  -  327 

Parties. 

Designation  of    19 

Death  of,  in  Suits  for  Injuries  Resulting  in  Death  450 

Death  of,  Abatement  by   445  -  448 

Defect  of,  Matter  of  Abatement   359 

Incapacity  of,  Matter  of  Abatement 359 

Incapacity  of,  Must  be  Plead  as  Defense  369 

In  Mandamus  391 

In  Quo  Warranto 397  -  399 

In  Suits  by  and  Against  Insane  Persons 453  -  454 

In   Suits   to   Foreclose   Vendor's  Liens 190  -  195 

In  Trial  of  Right  of  Property   403-404 

New,  How  Made  in  Case  of  Death 449 

Pleas  in  Abatement  for  Defects  in   355  -  356 

Parties  to  Actions,  Who  May  Be,  Chapter  VIII   160-180 

Representatives  of  Sovereignty 160  -  169 

The  State 160-161 

Counties 161 

Cities  and  Towns   162 

Federal  Government   162 

Natural  Persons,  Officers  162  -  170 

Liability,   When  the  Government  Has   No   Power   to  Authorize 

the  Act 163-166 

Liability  of,  When  Power  Not  in  Fact  Delegated 166 

Liability  of,  When  Delegated  Power  Misused   166 

Ministerial  Acts  and  Acts  Involving  Official  Discretion 167 

Official  Discretion,  Acts  Involving 167 

.Legislative  Officers   168 

Executive  Officers    168 

Judicial   Officers   •. 169 

Jurisdiction  as  Affecting,  Liability  of   169 

Persons  in  Their  Private  Capacity 170  -  180 

Different  Classifications  170 

Citizens  of  Texas   170 

Citizens  of  Other  States   170-171 

Alien  Friends    171 

Alien  Enemies    171-172 

Persons  Sui  Juris,  Rule   173 

Assignees  for  Benefit  of  Creditors   172 

Trustees   and   Beneficiaries    173 

Executors   174 

Administrators    174 

Heirs  as  Parties  in  Suits  Touching  Estates   174  -  175 

Community  Administration,  Parties  in  Suits  Affecting 175 

Persons  Non  Sui  Juris   175  -  176 

Married  Women 175 

The  Husband  as  Party  in  Suits  Involving  Wife's  Rights 175  -  176 

Wife's  Separate  Property,  Parties  in  Suits  Concerning 175  -  176 

Wife,  Parties  to  Suits  Involving  Rights  of  175-176 

Infants    176 

Insane  Persons   176 

Habitual   Drunkards    176 

Guardians  of  Infants  and  Others   176 

Combinations  of  Natural   Persons    176  -  179 

Partnership   177  -  178 

Dormant  Partners  and  Surviving  Partners 177  -  178 

Limited  Partnerships   , 178 

Joint  Stock  Companies    178 

Charitable  and  Social  Organizations  Uncorporated   178 


510  INDEX. 

Parties  to  Action — continued.  PAGE 

Corporations,  Domestic   178 

Corporations,   Foreign    178  -  179 

State's  Right  to  Exclude  from  the  Courts 178  -  179 

Allegation  of  Capacity  in  Which  Suit  Is  Brought 179  -  180 

Parties — Joinder,  Nonjoinder,  and  Misjoinder,  Chapter  X 181-211 

Necessary 181-183 

Proper    181-183 

Improper   184 

Persons  Sought  to  Be  Made 184  -  185 

Persons  Actually  Made   184  -  185 

Persons  Actually  and  Properly  Made 184  -  185 

Plaintiffs,  Defendants,  and  Intervenors 185 

Intervenors    185 

Common  Law  Rules   186 

Equity  Rules   187 

Texas  Rules    187-203 

In  Actions  Concerning  Real  Property   188  -  196 

Trespass  to  Try  Title    188 

Partition 188-190 

Actions  to  Remove  Cloud   190 

Actions  to  Foreclosure  Liens  on   190  -  195 

See  Vendor's  Lien. 

Actions  to  Foreclosui-e  Mortgages  and  Deeds  of  Trust  on 195  -  196 

Actions  for  Damages  to  Land    196 

Actions  Affecting  Personal  Property 196  -  198 

When  Title  Is  Involved   196 

Partition  of 197 

Actions  to  Foreclosure  Liens  on  Personal  Property 197 

Actions  for  Damage  to,  Parties  to    197 

Suits  on  Contract 198  -  200 

See  Contracts. 

Suits  for  Torts 200 

Mandamus   • 200 

Quo  Warranto 201 

Judgment,  Actions  Concerning 201 

Actions  on  Official  Bonds    201-202 

Carriers,  Actions  Against 202 

In  Actions  for  Injuries  Resulting  in  Death 203 

Objections  to  Nonjoinder  or  Misjoinder 203  -  205 

Nonjoinder  of  Necessary  Parties  204 

Nonjoinder  of  Proper  Parties   204  -  205 

Misjoinder  of  Parties   205 

New  Parties 206  -  207 

Right  to  Make  by  Plaintiff 206-207 

Right  to  Make  by  Defendant : 206  -  207 

Notice  to ' 207 

Intervenors    208  -  210 

Rules  Governing  Right  to  Intervene   "  208  -  209 

Manner  of  Intervening ; 209 

Notice  of  Intervention   209 

Effect  of  Previous  Action  in  the  Cases  on  209  -  210 

Position  in  the  Suit 210 

Partition,  Joinder  with  Trespass  to  Try  Title   420 

Parties  in    180  -  190 

Venue  in    225 

Proceeding  Quasi  in  Rem 46 

Partners,   Suits  by    449 

Effect  of  Death  of  One  Pending  Suit 449 

Partnerships  as  Parties 177  - 178 

Pleading  and  Proof  of   272 

Party  Walls,  Jurisdiction  of  Suits 109,  112 


INDEX.  511 

PAGE 

Payment,  How  Plead 290,  369 

Penalties,  Jurisdiction  of  Suits  for   102 

Abatement  of  Suits  for   448 

Pendency  of  Another  Suit  as  Ground  for  Abatement "  45$ 

State  and  Federal  Courts  with  Regard  to  453 

Personal  Injuries,  Death  of  Party,  Abatement  of  Suit  for 446  -  448 

Personal  Privilege,  Pleas  of   358 

Personal  Property,  Venue  in  Suits  to  Recover   224 

In  Suits  for  Partition  of   225 

Persons  in  their  Private  Capacity  as  Parties   170  -  180 

Persons  Sui  Juris    172 

Persons  Non  Sui  Juris 175  -  176 

Primarily  and  Secondarily  Liable,  Joinder  of  454  -  455 

Persons   Unlawfully  Acting  as  Corporations    397 

See  Quo  Warranto. 

Petit  Jury,  Definition  of   90 

Petition,  See  Plaintiff's  Original  Petition   323-348 

Indorsement  in  Trespass  to  Try  Title   419 

Meaning  of  in  Our  System   ..." 255 

Place   of   Holding   Court  as   Limitation   on   Power   of 9,     33 

Plaintiffs    185 

Must  Sue  in  Proper  Capacity   327 

Petition  Must  Show  Right  of   327 

Joinder  of,  Governed  by  Common  Law  Rules   T  .  .  .  .  199  -  200 

Plaintiff's   Original   Petition,   Chapter   XIII    323-348 

Formal   Parts    323 

Marginal  Venue 323 

Term  of  the  Court   323 

Address    323 

Commencement    324 

Names  and  Residences  of  Parties   324 

Capacity  of  Parties   324 

Cause  of  Action   324-347 

Statutes  Regarding 324  -  325 

Manner  of  Stating 325 

Full   Statement    325 

Clear  Statement   325 

Logical  Statement   325 

Legal   Statement    325 

Rules  of  Court  Regarding  325 

Counts  and  Paragraphs 325  -  327 

Consistency  Between  Different  Counts  Not  Required   326 

Consistency  Within  Same  Count  is  Required 326 

Singleness  Not  Required 326 

Presentation  of  the  Case  by  Paragraphs    326  -  327 

Elements  of  a  Cause  of  Action *. 327 

Petition  Must  Show  Plaintiff's  Right    327 

Suit  Must  Be  Brought  in   Proper   Capacity 327 

Legal   Rights   and  Duties 328-333 

Definitions    328-329 

Depend  on  Special  States  of  Fact   329 

Three  General  Conditions  of  Fact   329 

Allegations.  When  Right  Depends  on  General  Conditions   330 

Allegations,  When  Right  Depends  on   Special   Conditions 331-332 

Allegations  of  Plaintiff's  Right  in  Suits  for  Tort 333 

Allegation  in  Suits  on  Contract   333  -  341 

Essentials   of   Contract    333-334 

Consideration,  Rules  as  to  Pleading    334  -  340 

Civil  Law  and  Common  Law  View   334  -  337 

Contracts  of  the  Law  Merchant   335 

Common  Law  Contracts  Under  Seal    .  336 


512  INDEX. 

Plaintiff's  Original  Petition — continued.  PAGE 

Common  Law  Contracts  Not  Under  Seal    336  -  337 

Texas  Statutes  and  Decisions   337  -  340 

Result  of  the  Decisions    340 

Mutual  Assent   340 

When  Must  Be  Alleged  to  Be  in  Writing 341 

Description  of  341 

Wrong  by  the  Defendant   342-346 

How  Legal  Wrong  May  Be  Committed   342 

Petition  Must  Clearly  Show    342-343 

Legal  Status  of  the  Defendant  as  Affecting  Liability  343  -  344 

Defendant's  Connection  With  Wrongful  Act  or  Omission   344  -  345 

By  Personal  Act  or  Omission   344 

By  Act  or  Omission  of  Some  Other  for  Which  Defendant  Is 

Responsible    344  -  345 

Wrong  Complained  of  Must  Be  Direct  Cause  of  Injury  346 

When  Defensive  Matter  Must  Be  Negatived   346 

Legal  Injury 346-347 

Remedies  Provided  by  Law 347 

Damages    347 

Prayer  for  Relief 347-348 

Special  and  General    347 

For  Citation   347 

Signature   ". .  348 

Indorsement 348 

Pleading,  G-eneral  Principles  of,  Chapter  XI  , .  .  .  .  247 

Definitions  by  Others 247  -  250 

Definitions  by  Author    250 

As  a  Process    250-251 

Issues    251 

Combination  of  Issues   252  -  253 

Statutory  Provisions  and  Rules   253  -  255 

Petition  and  Answer,  Meaning  of    255 

Different  Instruments  of  Pleading  in  Their  Order   255 

Original  Petition   255 

Original   Answer    255 

Supplemental   Pleadings    256 

Rules   of   Construction    256 

Demurrers,  General  and  Special   256  -  257 

Pleadings  Presenting  Issues   257  -  258 

Rules  Governing  Such  Pleadings   258 

What  Are  Facts 258-266 

Common  Meaning 258  -  259 

Legal  Meaning,  General  Discussion   259  -  261 

In  the  Law  of  Pleading   261  -  266 

Distinguished  from  Conclusions  of  Law   261 

Some  Conclusions  of  Law  Permissible  in  Pleading  263  -  264 

Distinguished  from  Evidence    264  -  266 

Fullness   in  Pleading 266-267 

Every  Material  Fact  Must  Be  Stated   266 

Conclusions  of  Law  Should  Not  Be  Stated  266 

Cases  Announcing  and  Illustrating  Rule  as  to  Fullness 266  -  270 

Foreign  Laws  Must  Be  Plead   266 

Proof  Can  Not  Go  Beyond  Facts  Pleaded 267 

Rule  in  Divorce  Cases" 267-268 

Facts  Constituting  Fraud 268-269 

Conclusions  of  Law  Not  Sufficient    269 

Law  Need  Not  Be  Plead   270 

Foreign  Laws  Not  Included  in  This  Rule 270 

Facts  Judicially  Known  Need  Not  Be  Plead   271 

General  Rules  of  Conduct  and  General  Conditions  Need  Not  Be.  ...  271  -  272 

Capacity  of  Parties  to  Contract  Need  Not 271 


INDEX.  513 

Pleading — continued.  PAGE 

Legality  of  Contract  Need  Not  Be 271 

Restatement  of  General  Rule   272 

Need  Not  Anticipate  Defensive  Matters   272 

When  Defensive  Matter  Does  Appear,  Its  Effect  Must  Be  Avoided.  .  275 

Omissions,  When,  Cured  by  Pleading  of  the  Other  Party 273  -  274 

Adoption  of  Pleadings  of  the  Other  Party  274-275 

Adoption  of  Former  Pleadings  by  Same  Party   275 

Omissions  Cured  by  Verdict 275  -  277 

Cases  Discussing  275  -  276 

Result  of  Decisions   277 

Damages   277  -  278 

General  and  Special  Damage,  Distinction  277 

Actual  and  Exemplary  Damage  277  -  278 

Prayer  for  Relief  278 

Prayer  Must  Conform  to  the  Facts  Alleged 278 

Relief  Not  Included  in  the  Prayer 278 

Certainty  in  Pleading   278  -  292 

Rules  as  to   278  -  279 

Illustrative  Cases 279  -  280 

Time    .  .  .  ,T 280-281 

Place 281-282 

Quantity 282 

Value   , 282-283 

Thing  Sued  for 283 

Videlicet  Not  Necessary 283 

Alleging  Right  Under  Contract    284-286 

In  Case  of  Parol  Contract 284 

Written  Contract    284-286 

Rule  as  to  Misdescription 284 

Illustrative  Cases  284  -  286 

Statement  of  the  Legal  Effect    286 

Rule  as  to  Divisible  Contracts    286 

In  Allegations  of  Conditions  Precedent  or  Concurrent 286 

Rights  Not  Dependant  on  Contract  287  -  288 

1  Rule,  When  Right  Depends  on  Special  Relations 287 

Joint  and  Several  Rights 287 

Illustrative  Cases    287 

Allegations  of  Negligence 288  -  290 

Cases  Discussing   289-290 

Result  of  the  Cases   290 

Statutory  Requirements  as  to  Certainty    290  -  291 

Payment 290 

Accounts 291 

Facts  Peculiarly  Within  the  Knowledge  of  the  Adverse  Party   ....  291 

Relaxation  of  the  Rule  to  Prevent  Prolixity 291 

Relaxation  Growing  Out  of  the  Nature  of  the  Subject 291  -  292 

Exhibits   292 

Directness,  Rules  as  to 292-293 

Consistence,  Rules  as  to   293 

As  Between  Different  Counts 293 

As  Between  Different  Facts  in  Same  Count   293 

Facts  Must  Be  Plead  According  to  Testimony   293  -  295 

Pleading  and  Evidence  Must  Concur   293  -  294 

Illustrative  Cases    294-295 

Duplicity   295-297 

At  Common  Law 295  -  296 

Texas   Rule    297 

Multifariousness   297-298 

Verification  of  Pleadings 298-300 

What  Is 298 

33 — Pleading 


514  INDEX. 

Pleading — continued.  PAGE 

When  Required  of  Plaintiff 299 

When  Required  of  Defendant    299-300 

Does  Not  Make  the  Pleading  Evidence   300 

Rules  as  to  Pleas  in  Abatement  300 

Conciseness,  Rule  as  to   300  -  301 

Must  Be  Logical   301-302 

Failure  to  Observe  the  Rules    302 

Defects  in  Substance   302-304 

How  Adverse  Party  Can  Avail  of  302  -  304 

Defects  in  Form   304 

Pleadings  by  Intervenors 305 

Pleadings. 

Under  the  Republic    66  -    70 

Under  Constitution  of  1845  75  -    79 

Purpose  of    247 

Different  Classes  of    306-309 

Contrasted  with  Motions   435 

In  Special  Cases,  See  Chapter  XV  383  -  404 

In  Cross  Actions   377  -  381 

.    By  the  Plaintiff  in  Libel   383-385 

By  Defendant  in  Libel   385-388 

In   Slander 387-388 

In  Mandamus   391-392 

In  Quo  Warranto   400  -  401 

In  Trespass  to  Try  Title 413-428 

See  Trespass  to  Tiy  Title,  Pleading. 

In  Trial  of  Right  of  Property 403  -  404 

See  Pleadings,  General  Principles. 
See  Plaintiff's  Original  Petition. 

Pleas  in  Abatement    355-363 

Amendment  of    320  -  321 

Due  Order  in    355 

As  to  Parties   356 

As  to  the  Writ  and  Petition 357 

For  Venue  Improperly  Laid,  Practice   238  -  241 

Verification  of    300 

Pleas  in   Bar    363-371 

See  Defendant's  Original  Answer,  Pleas  in  Bar. 

Distinguished  from  Dilatory  Pleas   54 

Pleas  in  Confession  and  Avoidance  366  -  370 

See  Defendant's  Original  Answer.   Same  Title. 

Possessory  Actions,  Abatement  of    448 

Potential  Jurisdiction 23  -    27 

Prayer  for   Relief    347-348 

Presumptions,  Difference  Between  as  to  Pleading  and  Evidence  27 1  -  272 

Principal  and  Surety,  Joinder  of  as  Defendants 454  -  455 

Principal   Obligors,  Joinder  of  as  Parties   199  -  200,  454  -  455 

Privileged  Communications  in  Libel  and  Slander   385 

Probable  Cause,  Allegation  of   263 

Probate  Jurisdiction,  What  Is 141 

Probate  Proceedings,  When  in  Rem   38 

Proceedings  in  County  Court,  Venue  in  Suits  to  Revise 230 

Proceedings  in  Personam,  in  Rem,  and  Quasi  in  Rem 34  -    47 

Proceedings   in   Personam 34  -    36 

Definition 34 

Necessity  for  Active  Jurisdiction  over  Person 34  -    35 

Service  on  Residents  and  on  Non-Residents 35 

Change  in  Texas  Rule  by  Pennoyer  v.  Neff 36 

Proceedings  in  Rem 37  -    39 

Definition 34 

Nature  and  General  Effect 37 


INDEX.  515 

Proceedings  in  Rem — continued.  PAGE 

Parties,  Notice,  Res    37 

Examples  of    37  -    39 

Proceedings  Quasi  in  Rem   39  -    46 

Definition  of   34 

Nature  and  Effect   39 

Legal  Custody  of  the  Res    40 

Service,   Necessity   for    40  -    46 

Holding  of  the  U.  S.  Supreme  Court  under  Tennessee  Statute 40 

Texas  Rule  in  Attachments    41 

Examples  of   43  -    46 

Prolixity  to  be  Avoided  in  Pleading 291 

Proper  Parties,  Who  Are 181-183 

Nonjoinder  of   j 204  -  205 

Property  Rights,  Allegations  of   287 

Cross-Action  Between   380  -  381 

Survival   of   Suits  for    445  -  448 

Provisional  Government 57  -    59 

Proximate  Cause 346 

Public  Roads.  Damages  for  Opening 143  -  146 

Q 

Quo  Warranto   394-402 

Information  in  Nature  of 394  -  397 

Civil  Remedy   394 

Early  Texas  Rules    394 

Act  1879    394-395 

Construction  of  This  Act    395  -  396 

Civil  Remedy    396 

Instances  in  Which  Action  Has  Been  Sustained   397 

To  Oust  Officer    397 

To  Oust  Persons  Unlawfully  Acting  as  Corporation   397 

To  Oust  Corporation  from  Unlawfully  Exercising  Franchises 397 

To  Forfeit  Charter  of  Corporation   *. 397 

Parties    398-399 

State  Always  Plaintiff   398 

By  What  Officers  Instituted    398 

The  Information  or  Relation   398-399 

Verification  of,  and  of  Pleadings    398 

When  Objection  to  Preliminaries  May  Be  Made 398  -  399 

Defendants 399 

When  Against  Intruder   399 

When  Against  Persons  Unlawfully  Assuming  to  Be  Corporation  .  .  .  399 

When  Against  Corporation   399 

Jurisdiction 399 

Under   Former  Constitutions. 
Under  the  Present  Constitution. 

Venue   399 

Pleading    400 

By  Plaintiff    400 

Comparison  With  Pleading  in  Ordinary  Suits   400 

Permission  to   File    400 

Relation  or  Petition   400 

Greater  Certainty   400 

Amendment    400 

By  Defendant  401 

Judgment    40 1 

Generally 401 

Fine    * 401 

Cases  in  Which  Not  Proper  Remedy 402 


516  INDEX. 

Quo  Warranto — continued.  PAGE 
When  Regularity  of  Corporation  Depends  on  Facts  Determined  by 

Extrajudicial  Tribunal  402 

To  Settle  Controversies  Between  Legal  Officers  as  to  Their  Official 

Rights 402 

To  Prevent  Breach  of  Contract,  or  Recover  Penalties  for  Such 

Breach    402 

B 

Railroad  Companies,  Dissolution  of 451  -  452 

Venue  in  Suits  Against 232 

Rebuttal  Evidence,  Admissible  Under  General  Denial 366  -  367 

Receivers,  Appointment  of  on  Dissolution  of  Corporation 351  -  352 

In   Quo   Warranto   Proceedings 401 

Venue  in  Suits  Against ' 232 

Rescission  of  Conveyance  of  Land,  Jurisdiction 110-113 

Reconvention,  See  Cross- Action,  Defendant's  Original  Answer 371-382 

Record    302  -  .303 

How  Made,  of  Order  on  Motions 444 

Venue  in  Suits  to  Supply 237 

Remedies,    Legal .  347 

Remittitur  of  Part  of  Claim  to  Bring  Within  Jurisdiction 126 

Rents  and  Profits  in  Trespass  to  Try  Title , 418-419 

Representatives  of  Sovereignty  as  Parties 160  -  169 

Republic  of  Texas 62  -    70 

Residences  of  Parties  Must  Be  Alleged 324 

Of  Plaintiff,  Venue  Fixed  by 217 

Of   Defendant,   Venue   Fixed   by 213-215 

When  of  Some  Known  and  of  Others  Not  Known 218 

Residence  of  Domestic  Corporations 218  -  219 

Revenue  Cases,  Proceedings  in  Rem 38 

Revolutionary  Period 57  -    61 

Rules  of  Court  as  to  Pleading 254  -  255 

Rules   Governing   Preparation   of   Pleadings 258 

S 

Scire  Facias  to  Make  New  Parties  in  Case  of  Death 449 

Scire  Facias  to  Revive  Judgment,  Venue 237 

Seal  as  Importing  Consideration 336  -  340 

Seisin  and  Possession,  Allegation  of 204 

Self  Help   i 3 

Sequestration,  Venue  in  Suits  for  Damage 220 

Trial  of  Right  of  Property  Under 115-116 

Service  in  Different  Kinds  of  Actions 46 

Service  of   Notice  of  Motions 440  -  442 

Set-Off s,   See   Cross-Action 371-382 

See  Defendant's  Original  Answer,  Cross- Action. 

Sheriff,    The ' 94 

Signature  to  Pleadings 348 

Slander 387-388 

Certainty    Required    in    Alleging    Words 387-388 

See  Libel. 

Jurisdiction,  Suits  for 105 

Sovereignty,  Definition  of .* 2 

Territorial  Limitations  on -29 

Special  Cases,  Pleading  in 383  -  404 

Special   Demurrers    • 363  -  365 

Special   Denials 367-368 

When  Must  Be  Verified 367 

State,  Definition 2 


INDEX.  517 

PAGE 

State  as  a  Party 160  -  161 

State,  Texas  as 70  -    86 

State  Courts,  Jurisdiction  of  as  Affected  by  Powers  of  Federal  Govern- 
ment    11  -    13 

State's  Right  to  Exclude  Foreign  Corporations  from  Its  Courts 178  -  179 

Status  of  Party,  as  Affecting  Liability  for  Wrong 343  -  344 

Statutes,  Trespass  to  Try  Title. ' 406  -  412 

Statutes  on  Venue,  Enumeration  of 212 

Statutory  Provisions. 

As  to  County  Court 100-101 

As  to  District  Court 97  -    98 

As  to  Petition  in  Trespass  to  Try  Title 415  -  420 

As  to  Pleading 254 

Sufis,  Complaints  and  Pleas,  Jurisdiction  Over 116  -  117 

Suits,  Consolidation  of 159 

Suits,  Jurisdiction  of. 

For   Divorce    103 

In  Behalf  of  the  State  for  Penalties,  Escheats,  and  Forfeitures 101  -  103 

Involving  Title  to  Land ' 107  -  114 

To  Foreclose  Liens  on  Land 114  -  115 

Suits,  Parties  to. 

On  Contracts    198  -  200 

On  Torts 200 

Supplemental   Pleadings    306  -  309 

Amendment  of 310 

In  Trespass  to  Try- Title .* 333-334 

Supreme  Court. 

Under  the  Republic 62 

Under  the  Constitution  of  1845 70 

Under  the  Constitution  of  1 876 81 

Under  Amendments  of  1891 82 

Sureties  as  Parties : 199  -  200 

Joinder    of,   and    Principals    as    Parties 454  -  455 

Surplusage  to  Be  Avoidel  in  Pleading 300 

Surviving  Partner,  Continuation  of  Suit  by 449 

T 

Talesmen    93 

Ten  Years'  Statute  of  Limitation 428 

Territorial  Jurisdiction   22 

Distinguished   from   Venue 211 

Territorial  Limits  as  Affecting  Judicial  Power 29 

Testimony  in  Support  of  Motion 444 

Texas  as  a  Mexican  State 50  -    57 

Texas  During  the  Revolutionary  Period. 57  -    61 

Texas  Under  the  Republic. -.  .  62  -    70 

Development    of    Judicial    System 84  -    86 

Three  Years'  Statute  of  Limitation 427 

Time  of  Holding  Court 9 

As  Limiting  the  Power  of  the  Court 33 

Time  When  Discontinuance  May  Be  Taken 455 

Title  to  Land. 

Allegation  of,  in  Trespass  to  Try  Title 417 

Proof  of,  in  Trespass  to  vTry  Title 421 

Suits  Directly  Involving,  Jurisdiction 107  -  114 

Suits  Incidentally  Involving,  Jurisdiction 107-114 

Suits  on  Warranty  of  Title,  Venue 229 

Title  to  Land  Certificates,  Jurisdiction  of  Suits  Involving.  .  Ill 
Torts. 

Allegation  of  Plaintiff's  Rights  in  Suits  for 287  -  288,  333 


518  INDEX. 

Torts — continued.  PAGE 

Joint  and  Several,  Parties  in  Suits  for 287 

Death  of  Party,  Abatement  of  Suit 445-448 

Joinder  of  Actions  for 156  -  158 

Parties  in  Suits  for 200 

Extraterritorial,   Jurisdiction   Over 30  -    33 

Transient   Persons,    Who   Are 215 

Venue  in  Suits  Against 215 

Transitory  Actions,  Jurisdiction  Over 32  -    33 

Trespass,   Venue  in   Suits  for 221  -  224 

Trespass    on    Realty,    Jurisdiction 108,   109,  113 

Trespass  to  Try  Title,   Chapter  XVI 405-434 

Action   of   Ejectment 405  -  406 

Statutes  as  to  Trespass  to  Try  Title 406-412 

Changes   Made   by   These    Statutes 412 

Nature   and   Scope   of  the  Action 412 

Definition  of 413 

Pleadings  by  Plaintiff 413-420 

General  Rules  Concerning  Petition 413 

Decisions   Regarding    413  -  415 

Statutory  Requirements    415  -  420 

Description  of  Land.  Certainty  in 415  -  416 

Plaintiff's  Interest   416-417 

Possession  by  Plaintiff 417 

Wrong  by  Defendant 418 

Rents  and  Profits 418-419 

Damages    418  -  419 

Indorsement  on  Petition 419 

Joinder  of,  With  Other  Causes  of  Action 420 

Pleadings  by  Defendant 420  -  428 

Plea  of  Not  Guilty,  Effect  of 420 

What  Proof  by  Plaintiff  Will  Overcome 421 

Plaintiff  Must  Recover  on  Strength  of  His  Title 421 

What  Title  Will  Support 421 

Not  Guilty  as  Admission,  Full  Discussion 422  -  424 

Defenses  Which  Are  Available  Under 425 

Effect  of  Joining  Special  Pleas  With  "Not  Guilty" 425 

Plaintiff's  Right  to  Rebut  Defenses  Interposed  Under 426 

Limitation 426-428 

Rules  as  to  Pleading;  Three,  Five,  and  Ten  Years. 426  -  428 

Improvements  in  Good  Faith 428  -  433 

Early  Statutes  and  Cases  on 429-432 

Procedure  Under   Present  Statute 432  -  433 

Pleading,  Essential  Allegations 432-433 

Certainty  as   to   Good  Faith 433 

As  to  Nature  and  Extent  of  Improvements 433 

As  to  Land  in  Possession 

As  to  Adverse  Possession 433 

Supplemental  Pleadings  in 433  -  434 

General  Rules  as  to 433-434 

Setting  Up  Disabilities  When  Limitation  is  Plead 434 

Cross- Actions  in 380-381 

Parties  in    188 

Proceeding  Quasi  in  Rem 45 

Trial  by  Jury,  Right  of 91 

Trial  Amendment 310 

Trial   of   the   Right   of   Property 115  -  116,  402  -  404 

What  is 115 

Practice 115-116 

Decisions  Regarding 115-116 

Definition    402 

Who  Entitled  to 402-403 


INDEX.                               ,  519 

Trial  of  the  Right  of  Property — continued.  PAGE 

Cumulative   , 403 

Procedure    403-404 

Affidavit,   Bond,  Action  of   Sheriff 403 

Duty  of  Clerk 403 

Pleadings  in 403-404 

Issues   403 

General  Rules  Applicable 404 

Duty  to  Prosecute 404 

By  Plaintiff 404 

By  Defendant  : 404 

Trial  of  Title  of  Land i05  -  114 

Jurisdiction  in  Cases  of 105  -  114 

Land,  What  is 106-107 

Easements   106 

Fixtures   106  -  110 

Trial  of  Title  to 107-114 

Suits  Involving  Title  to  Land 107-114 

Decisions  Construing  These  Terms 107  -  113 

Result  of  Decisions 113-114 

Houses,  Jurisdiction  in  Suits  Concerning 107,  109 

Homestead,  Jurisdiction  of  Suits  Involving 108  -  109 

Insurance  Upon  Homestead,  Jurisdiction 108 

Easements.  Damages  to,  Jurisdiction 108  -  109 

Trespass  on  Realty,  Jurisdiction 108,  109,  113 

Party  Walls,  Suits  Regarding,  Jurisdiction 109,  112 

Title  Incidentally  Involved 109 

Warranty  of  Title,  Jurisdiction  of  Suit  on 110 

Rescission  of  Conveyance  of  Land,  Jurisdiction 110,  113 

Bond  for  Title,  Damages  for  Breach  of Ill 

Title   to  Land   Certificates,   Jurisdiction Ill 

Trustees  and  Beneficiaries  as  Parties 173 

Trustees  Operating  Railroads,  Venue  in  Suits  Against 252 

Truth  as  Defense  in  Libel  and  Slander 386-387 

U 

Use  and  Occupation  in  Trespass  to  Try  Title 418  -  419 

Usury,  Facts   Constituting  Must  Be   Plead 369 

V 

Variance  Between  Express  and   Implied   Contracts 294 

Vendors'  Liens. 

Parties  in  Suits  to  Foreclose 190  -  195 

Executed  and  Executory  Sales 190  -  191 

Executed  Contracts,  Rights  and  Liabilities  of  Parties 191 

Executory  Sales 190  -  192 

Vendor's  Remedies  in 191  -  192 

Assignee  from  Vendor,  Remedies  of 191  -  192 

Parties  in  Suits  by  Vendor  to  Foreclose 191  -  192 

Rights  and  Liabilities  of  Second  Vendee 192-193 

Rules  When   Series  of  Notes   Given 194-195 

Relative  Rights  of  Holders  of  Different  Notes 194-195 

Rights  and  Liability  of  Assignor  of  Part  of  the  Notes 194  -  195 

Verdict. 

Omissions   in  Pleading,   When   Cured   by 275  -  277,  304 

Early  Cases  on 275 

Later  Cases    276 

Result  of  the  Decisions 277 

Verification  of  Pleadings 298-300 

Of   Petition  in   Mandamus 391 

See  Quo  Warranto. 


520  INDEX. 

PAGE 

Verified  Pleadings,  Amendment  of 317  -  321 

Venue. 

Objections  to,  Matter  of  Abatement 360 

Practice  When  Improperly  Laid 360-363 

Illustrative  Cases,  Uncertainty  in 360  -  363 

In  Quo  Warranto 399 

Against  Codefendant  Can   Not  Be  Fixed  by  Joining  a   Nonresident 

Corporation 218 

Difference  Between,  and  Territorial  Jurisdiction 23 

Venue,   Chapter   X • 211-246 

General  Principles  211  -  213 

Distinction  Between,  and  Territorial  Jurisdiction 211 

General    Policy    212-213 

Rules  of  Construction  of  Statute 213  -  214 

Generally  Fixed  by  Residence  of  Defendant 214  -  215 

Exceptions  to  the  Rule 215-238 

Married  Women   215 

Transient  Persons 215  -  216 

Nonresidents  and  Persons  Whose  Residence  is  Unknown 216  -  217 

Two  or  More  Defendants  Residing  in  Different  Counties 217  -  219 

Fixed  by  Contract 219 

Against  Executors,  Administrators,  or  Guardians 219 

Fraud  and  Defalcation  of  Public  Officers 220 

Damages  in  Attachment  and  Sequestration 220 

Crime,  Offense,  or  Trespass : \ 221  -  224 

Recovery  of  Personal   Property 224 

Inheritances 225 

Foreclosure  of  Mortgages 225 

Partition  of  Lands 225  -  226 

Other  Suits  Concerning  Lands 226-229 

Warranty  of  Title  to  Land 229 

Divorce 230 

To  Enjoin  Judgments   or   Stay  Proceedings   in  Any   Suit 230 

Revision  of  Proceedings  in  County  Court -230 

Counties 231 

Suits  by  the  State  to  Forfeit  Charters 231 

Suits  by  the  State  to  Forfeit  Lands 232 

Private  Corporations    232-234 

Against  Railroads  for  Wages 235 

Foreign  Corporations    235 

Insurance  Companies    '. 235 

When  Prescribed  by  Particular  Law 236 

Quo  Warranto 236 

Removal  of  Officers 236 

Patent  Fees    236 

Penalties  Under  Railroad  Commission  Act 236 

Occupation  Tax,  and  Forfeitures  Under  Act  of  June  20,  1897 

Supplying  Lost  Records 237 

County  Boundaries 237 

Scire  Facias   237 

Practice  When  Venue  Improperly  Laid .   238  -  241 

Change  of   241-246 

By  Agreement 241 

On  Application  of  One  Party 242-246 

Grounds   for    242-243 

Who  May  Apply  for 243-244 

Time  of  Making  Application 244  -  245 

To  What  County  Removed 245 

Form  of  Application  and  Supporting  Affidavits 245 

When  New  County  Formed 246 

Effect  of  Order 246 


INDEX.  521 

W 

PAGE 

Waiver  of  Defects  of  Form  in  Pleading 304 

Waiver  of  Privilege  of  Venue 239  -  241 

Warranty  of  Title,  Jurisdiction  of  Suits  on 110 

Warranty  of  Title  to  Land,  Venue  of  Suits  on 229 

Wife  as  Party  to  Suit  When  Husband  is  Insane 254 

Wife's  Separate  Property,  Parties  to  Suits  Concerning -175  -  176 

Words  Actionable  per  se 385 

Words,  Defamatory,  How  Alleged  in  Libel  and  Slander 385  -  387 

Writing,  How  Described  in  Pleadings  in  Libel 384 

Writs,  Power  of  the  District  and  County  Courts  to  Issue 129  -  139 

Written  Contracts,  as  Importing  Consideration 336  -  340 

Written  Contracts,  Pleadings  Founded  on 234  -  236 

Written  Motions   437-438 

Wrong  by  the  Defendant 342-346 

See  Plaintiff's  Original  Petition,  Wrong  by  Defendant. 


INDEX  TO  APPENDIX. 


PAGE 

Abandonment  of  Appeals  and  Writs  of  Error.    Rules  103-105 486 

Abandonment  of  Part  of  Action  or  Defense.    Rule  33 478 

Absence  of  Counsel.     Rule  49 479 

Affirmance  on  Certificate.    Rule  44 468 

Agreements  Between  Attorneys.    Rule  47 479 

Of  Counsel.     Rule  46 469 

Amendments.     Rules  12-16 474  -  475 

Answer.     Rules  6-11 473  -  474 

Appeals  to  Court  of  Appeals,  Jurisdiction  of  District  Court  Over  Cases. 

Rules  103-105 486 

Applications  for  Writ  of  Error.     Rules  1-5 457  -  458 

Arguments.     Rules   34-52 478-479 

Order  of.    Rules  31-36 478-479 

In  Court  of  Civil  Appeals.     Rules  47-54 469-470 

In  Supreme  Court.     Rule  13 460 

On  Motions.     Rule  14 : 463 

Arrest  of  Judgment,   Motions   in.      Rules   67-71 481  -  482 

Assignments  of  Error.     Rule  101 485 

Assignments  of  Error  in  Court  of  Civil  Appeals.    Rules  23-28 464  -  465 

Requisites  of.    Rules  25-27 464  -  465 

Additional  Can  Be  Filed  Only  by  Consent.    Rule  28 465 

Assignments  of  Error  in  the  Supreme  Court.    Rule  1 458 

Attorney  of  Record.     Rule   46 479 

Attorneys,  Entry  of  Names  on  Docket  in  Court  of  Civil  Appeals.    Rules 

16-18  463 

Attorneys  in  Supreme  Court,  Service  on.     Rule  5 458 

Notice  to,  of  Filing  Certified  Question  or  Certificate  of  Dissent.     Rule 

12    • 460 

Bills  of  Exception.     Rules  53-60 480 

Bonds  in  the   Supreme  Court.     Rule   5 458 

Briefs.     Rule    102 486 

Briefs  in  Court  of  Civil  Appeals.     Rules  29-45 465-469 

Manner  of  Preparing.     Rules  29-37 465  -  466 

Amendment  of.     Rule  38 : 466 

Failure  to  File.     Rule  39 467 

Defective.     Rule   45 468 

When  Must  Be  Filed.    Rule  41a 467 

Briefs  in  the   Supreme  Court.     Rules   11-12 460 

Those  Filed  in  Court  of  Civil  Appeals  May  Be  Used.     Rule  11 460 

Must  Accompany  Certified  Question  or  Certificate  of  Dissent.    Rule  12  460 

Additional.     Rule    13 460 

Call  of  the  Docket  and  Action  Then  to  Be  Taken.     Rule  26 477 

Call  of  Docket  in  Court  of  Civil  Appeals.     Rules  20-21 464 

Case   Improperly   Prepared.     Rules   53-53a 469  -  470 

Cases  Tried  Before  the  Judge.    Rule  66 481 

Causes,  When  Ready  for  Submission.    Rule  8 459 

Certificate  of  Dissent,  Notice  of  Filing.     Rule   12 460 

Certified  Question,  Notice  of  Filing.    Rule  12 460 

Certiorari  in  Court  of  Civil  Appeals.     Rule  10 462 


524  INDEX   TO   APPENDIX. 

PAGE 

Charge   of   the   Court.     Rules   61-62 481 

Charge,  No  Exception  Necessary  in  Civil  Cases.     Rule  54 480 

Citation  in  the  Supreme  Court,  to  Defendant  in  Error.     Rule  5 458 

In  Cases  of  Certified  Question  or  Certificate  of  Dissent.     Rule  12 ....  460 

Clerk  of  Court  of  Civil  Appeals,  Duty  Regarding  Transcript.    Rules  1-2.  .  461 

Clerk  of  District  and  County  Courts,  Duties  of.     Rules  79-84 483 

Clerk  of  the  Supreme   Court,  Duty  Regarding  Applications  for   Writ 

of  Error.    Rule  2 458 

Duty  Upon  Refusal  of  Application.     Rule  4 458 

Duty  Upon  Grant  of  Application.     Rule  5 458 

As  to  Trial   Docket.     Rule   6 459 

As  to  Motion  Docket.     Rule  10 459 

Contempt.     Rule  51 479 

Continuances  in  Court  of  Civil  Appeals.     Rule  12 463 

Counsel  and  Ai-gument.  Rules  34-52 478  -  479 

Criminal  Cases,  Rules  Governing  in  District  and  County  Courts.     Rules 

109-119    487  -  4S9 

Court's  Duty  to  Control  Argument.     Rules  40-41 479 

Custody  of  Transcript.     Rules  55-62 470  -  471 

Delay, '  Suggestion  of.     Rule  43 468 

Demurrers.      Rules    17-18 475 

Dilatory  Pleas.    Rule  24 476 

District  Court,  Jurisdiction  in  Administration  Cases.     Rules  106-108..  486 

Docket  in  Court  of  Civil  Appeals.     Rules  16-19 463 

Call  of.     Rules  20-21 464 

Dockets  in  District  and  County  Courts.     Rules  79-83 483 

Dockets,  How  Cases  and  Motions  to  Be  Entered  on.     Rules  6,  10 459 

Due  Order  of  Pleading.     Rule  7 473 

Evidence,  Bills  of  Exception  Regarding.     Rules  55-60 480 

Examination  of  Witnesses.     Rule  43 479 

Exceptions,  When  to  Be  Heard.     Rules  26-27 477 

Exceptions.     Rules   17-18 475 

Exhibits.     Rules  19-20 475-476 

Fictitious  Suits.     Rule  51 479 

General  Denial.    Rule  20 476 

General  Rules.     Rules  1-2 489 

Intervenor,  Position  in  the  Case.     Rule  37 478 

Intervenors.     Rule  30 477 

Judgment.    Rules  63-66 481 

Judgments,  Preparation  of.     Rule  48 479 

Jurisdiction  of  District  and  County  Courts  over  Writs  of  Error  and  Ap- 
peals.    Rules  103-105 486 

Leading  Counsel.     Rule  45 479 

Motion  for  Rehearing,  Court  of  Civil  Appeals.     Rule  63 47 1 

Motion  Docket  in  Court  of  Civil  Appeals.     Rule  21 476 

Motion  Docket  in  Supreme  Court,  Call  of.     Rule  13 463 

Motions  in  Supreme  Court.     Rule  10 459 

Motions  in  the  Court  of  Civil  Appeals.     Rules  8-15 462  -  463 

Based  on  Matters  of  Form.    Rule  8 .  .  -. 462 

To   Dismiss.      Rules    9-10 462 

For   Certiorari.     Rule   11 462 

To  Postpone.     Rule  12 463 

Motions  in  District  and  County  Courts.     Rules  21-25 476 

Motions  for  New  Trial  and  In  Arrest  of  Judgment.     Rules  67-71....  481-482 

New   Trials,   Motions   for.      Rules   67-71 481-482 

Notice  to  Counsel  of  Action  of  Court.    Rules  65-66 471 

Opening  and  Concluding  the  Case.    Rule  31 477 

Original    Answer.      Rules    7,    9 473  -  474 

Original  Petition.     Rules  4,   9 473-474 

Petition.     Rules   1-5 473-477 

Pleadings  in  the  District  and  County  Courts.     Rules  1-20 472  -  476 


INDEX    TO   APPENDIX.  525 

PAGE 

Preparation  of  Cases  for  Submission  in  Court  of  Civil  Appeals.     Rules 

22-28 464-465 

Quo  Warranto,  Transcript  in.     Rule  6 462 

Record,  How  Made  Up.    Rule  84 483 

Rehearing  in  Court  of  Civil  Appeals.     Rules  63-66 471  -  472 

Repleader,  When  Ordered.     Rules  29,  32 .  . 477-478 

.Rul^s. 

For  the  Courts  of  Civil  Appeals 461  -  472 

For   the  Court  of  Criminal  Appeals.      Rules   1-2 472 

For  the  District  and  County  Courts.     Rules  1-119 472  -  489 

For  the  Supreme  Court.     Rules   1-15 457  -  460 

Sidebar   Remarks   to  be   Suppressed.     Rule   40 479 

Statement  of  Facts  in  Criminal  Cases.     Rule  115 488 

In  District  and  County  Courts.     Rules  72-78 482-483 

Submission  of  Causes  in  Court  of  Civil  Appeals.     Rules  20-21 464 

Preparation  of  Cases  for.     Rules  22-28 464  -  468 

Submission  of  Causes  in  Supreme  Court.     Rules  7-8 459 

Suggestion  of  Delay.     Rule  43 468 

Supplemental   Answer.     Rules   8,    10,    11 474 

Supplemental  Petition.     Rule  5,  10-11 473  -  474 

Sureties,  Counsel  Not  Competent.    Rule  50 479 

Surprise.    Rule  16 475 

Transcript  in  Supreme  Court.     Rules  l-7a 461  -  462 

Clerk's  Duty  Regarding.     Rules  1-2 461 

By  Whom  Filed.     Rules  3-5 461-462 

In  Quo  Warranto  Cases.     Rule  6 462 

Shall  Accompany  Application  for  Writ  of  Error.    Rule  1 458 

Custody  of  Governed  by  Rules  for  Courts  of  Civil  Appeals.    Rule  13.  .  460 

Transcript  in  Court  of  Civil  Appeals.    Rules  55-62 470  -  471 

Transcript  in  Criminal  Cases.     Rules  109-119 487-489 

Transcript  in  District  Court  on  Appeal  or  Writ  of  Error.    Rules  85-100.  .   483  -  485 

Trial  Order  of.     Rules  26-52 477-479 

Writs  of  Error,  Applications  for.     Rules  1-5 457  -  458 

Requisites   of.      Rule    1 457 

Duty  of  the  Clerk  Regarding.     Rules  2-5a 457-459 

Writs  of  Error  in  the  Supreme  Court,  Statutes  Governing 490  -  491 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 
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